CHIEF    JUSTICE     ROGER     B.     TANEY 


Legal  and  Historical  Status 

of  the 

Dred  Scott  Decision 


A  History  of  the  Case  and  an   Examination  of 

the  Opinion   Delivered  by  the  Supreme 

Court  of  the  United  States, 

March   6,  1857. 


By 

ELBERT   WILLIAM    R.  £WING,  LL.  B., 

Attorney  and   Counsellor  of  the   Supreme  Court  of  the  United   States; 
Author  of  ''Northern  Rebellion  and  Southern  Secession,"  etc. 


A  bargain  cannot  be  broken  on  one  side  and 
still  bind  the  other.  I  am  for  the  Constitution, 
and  the  whole  Constitution.  —  Daniel  Webster 
of  Massachusetts,  speech  in  1851. 

Qui  statuit  aliquid  parte  inaudita  altera, 
Aequum    licet  statuerit,  haud  aequus  fuit. 

—Seneca. 


Washington,  D.  C. 

Cobden  Publishing  Company 

1909. 


COPYRIGHT,  1908, 

BY 
E.  W.  R.  EWING. 

All  rights  reserved. 


PRINTED     BY 

THE     EDDY     PRESS     CORPORATION 
WINCHESTER,  VA. 


CONTENTS 


ERRATA 


PAGE 

LINE 

5 

19: 

Brice                   should 

be  Bryce. 

7 

8: 

unauthorative         " 

"    unauthoritative 

ii 

12: 

purturbations 

"    perturbations. 

13 

30: 

Brice 

"    Bryce. 

19 

5: 

ships 

"    shops. 

30 

27: 

Missouri                   " 

"    Mississippi. 

57 

22: 

accured 

"    accused. 

72 

13: 

heel 

"    had. 

73 

27: 

after  "treated"  interline  "him." 

103 

6: 

a  obiter               should 

be  an  obiter. 

146 

8: 

eight 

"    eighth. 

147 

27: 

Is  so 

"    Ifso. 

150 

28: 

mullatoes                 " 

"    mulattoes. 

1  60 

u: 

Pickney 

'    Pinckney. 

181 

18: 

Garfield                    " 

"    Hayes. 

183 

8: 

was                            " 

"    were. 

190 

9: 

in                                " 

"    is. 

191 

14: 

two-thirds 

"    three-fourths. 

191 

35: 

two-thirds                " 

"    three-fourths. 

193 

i: 

omit  "the"  before  its 

. 

196 

7- 

stranger             should 

be  stronger. 

198 

32: 

convert                     " 

"    covert. 

201 

25: 

ebolutions 

"    ebullitions. 

221 

n: 

Pickney                    " 

"    Pinckney. 

Nullification    in    the    South 
Tndex 


.206 
225 


982258 


-t  - 


PRINTED     BY 

THE    EDDY     PRESS    CORPORATION 
WINCHESTER,  VA. 


CONTENTS 


PAGE 
The    Objects    of    this    Work 5 

Chapter  I. 
American    Courts 9 

Chapter  II. 
History  of  the   Case 18 

Chapter  III. 

The  Opinion  read  by  Chief  Justice  Taney  the  Judicial  Opinion  of 
the    Court 32 

Chapter  IV. 

Citizenship    of    Negroes 50 

Chapter  V. 
Scott  a  Slave  by  Illinois  Law 75 

Chapter  VI. 
Obiter  Dicta  and  the   Opinion 91 

Chapter  VII. 

Congress    and    Territorial    Legislation 117 

Chapter  VIII. 

The     Missouri     Compromise     the     only     Anti-Slavery     Territorial 
Attempt  by   Congress  after   the   Constitution 139 

Chapter  IX. 
Due   Process  of   Law 155 

Chapter  X. 

Slave  Property  under  the  Constitution  and  outside  of  a  State 166 

Chapter  XI. 

Northern  Nullification  and   Southern  Secession 187 

Chapter  XII. 

Nullification    in   the    South 206 

Index  , 225 


982258 


FOUNDATION   PRECEDENTS. 

In  1782  Judge  Wythe  of  the  supreme  court  of  Virginia, 
with  reference  to  the  constitution  of  that  State,  speaking  for 
the  court  said : 

"Nay  more,  if  the  whole  legislature,  an  event  to  be  dep 
recated,  should  attempt  to  overlap  the  bounds  prescribed  to 
them  by  the  people,  I,  in  administering  the  public  justice  of 
the  country,  will  meet  the  united  powers  at  my  seat  in  this 
tribunal;  and,  pointing  to  the  constitution,  will  say  to  them, 
here  is  the  limit  of  your  authority,  and  hither  shall  you  go, 
but  no  further." 

This  is  the  first  reported  case  in  the  United  States  where 
the  nullity  of  an  unconstitutional  law  was  discussed  before  a 
judicial  tribunal.  It  is  the  first  great  American  precedent. 
See  4  Call's  Virginia  Reports,  page  5. 

In  1803  the  Supreme  Court  of  the  United  States  held  that, 
"The  powers  of  the  legislature  (Congress)  are  defined  and 
limited;  and,  that  those  limits  might  not  be  mistaken  or  for 
gotten,  the  Constitution  is  written." 

This  is  the  first  instance  in  which  an  act  of  Congress  was 
held  unconstitutional,  and  the  first  in  history  wherein  a  court 
called  in  question  an  act  of  a  national  legislature.  See  Mar- 
bury  vs.  Madison,  i  Cranch,  United  States  Reports,  162. 

•  The  American  people  have  since  believed  that  the  prin 
ciples  thus  announced  and  since  followed  are  essential  to  their 
rights  and  liberty. 


OBJECTS  OF   THIS  WORK,  _      Cj 

The  Dred  Scott  Case,  decided  by  the  Supreme  Court  of  the 
United  States  on  March  6,  1857,  involved  JdifL_Jiio.sL_  funda 
mental  principles  of  government.  These  principles  were  the 
issues :  slavery  was  only  one  of  many  conditions  some  of  which 
sooner  or  later  would  have  presented  for  adjudication  these 
questions.  The  principles  involved,  being  applicable  much  be 
yond,  apart  from,  and  outside  and  irrespective  of  that  which 
brought  them  into  issue  in  this  case,,  survived ;  slavery  shortly 
perished,  just  as  in  reasonable  time  it  would  have  done  without 
the  violerice"wliich  accompanied  its  going.  Because  of  the  sur- 
^vival  of  these  questions  of  government,  a  study  of  this  case 
is  of  great  practical_yalue ;  and  aTEisfbry  of  the  case  and  of  its 
times,  a  correct  estimate  of  the  opinion  and  decision  of  the 
court,  a  truthful  picture  of  the  subsequent  conditions,  are  in 
dispensable  to  a  correct  understanding  of  the  most  crucial  per 
iod  in  American  history. 

As  to  the  importance  of  the  case  and  its  world-famous  de 
cision  eminent  writers  are  agreed.  For  instance :  Honorable 
James  Bnke,  English  diplomat,  distinguished  statesman,  and 
thorough"  historian,  declares  that  the  decision  "did  much  to 
precipit.ate_the_Civil  War."  Doctor  H.  von  Hoist,  late  profes 
sor  at  Frieburg,  Germany,  widely  accepted  as  an  authority 
upon  American  history,  pronounces  this  case  as  of  "eminent 
historical  importance;"  and  in  his  extensive  political  and  con 
stitutional  history  of  this  country  he  devotes  twenty-four  con 
secutive  pages  to  its  study.  Francis  Newton  Thorpe,  in  his 
recent  Constitutional  History  of  the  United  States,  says :  "The 
questions  involved  went  to  the  root  of  our  institutions."  James 
Ford  Rhodes  affirms :  "The  opinion  of  the  court  was  a  fact  of 
tremendous  import."  Alexander  Johnston,  long  professor  at 


6  LEGAL  AND  HISTORICAL  STATUS 

Princeton  University,  holds :  "One  of  the  most  important 
cases  ever  decided  in  the  United  States."  The  late  Mr.  Justice 
Miller,  while  associate  justice  of  the  Supreme  Court  of  the 
United  States,  pronounced  the  Dred  Scott  Case  and  Prigg  vs. 
^Pennsylvania  "perhaps  the  two  most  important  decisions  of 
the  Supreme  Court  that  have  been  delivered  in  many  years," 
'adding,  excepting'  the  latter  case :  "The  Dred  Scott  decision 
overshadowed  all  others  on  the  subject,  in  the  importance  of 
the  principles  which  it  laid  down,  and  in  the  immense  influ 
ence  it  had  upon  the  history  of  the  country."  August  2,  1859, 
Alexander  H.  Stephens  wrote :  "On  the  principles  of  the  Dred 
Scott  decision  depended  .  .  .  in  all  probability  the  destiny 
of  this  country." 

When  the  court,  concurring  in  the  opinion  written  by  the 
Chief  Justice,  as  a  fundamental  premise  upon  which  it  rested 
its  decision,  applied  to  Congress  when  legislating  for  the 
Louisiana  Purchase  territory,  a  part  of  the  United  States  and 
at  the  time  of  the  legislation  yet  in  a  territorial  condition,  the 
restraints  and  limitations  found  in  the  Constitution  of  the 
United  States,  'holding  that  Congress  in  legislating  for  a  Ter 
ritory  could  exercise  no  power  not  conferred  by  that  instru 
ment,  those  who  followed  Webster  and  Benton,  the  surviving 
enemies  of  the  Calhoun  school,  broke  forth  in  rage  nothing 
short  of  the  nullification  of  Federal  power.  When  in  its 
construction  of  the  Constitution  the  opinion  of  the  court,  as 
written  by  Chief  Justice  Taney  of  Maryland,  adjudged  the 
Missouri  Compromise  law  unconstitutional,  indignation  be 
came  open  rebellion.  The  Republican  party,  the  abolitionists, 
and  Northern  States  repudiated  the  decision,  and  declared 
that  they  would  not  be  bound  by  the  principles  it  laid  down, 
and  that  in  subsequent  legislation  Congress  should  and  would 
treat  the  decision  as  a  nullity. 

This  repudiation  professed  to  rest  upon  the  ground  that 
the  judgment  of  the  court,  at  least  as  to  the  constitutionality 
of  the  Missouri  Compromise  law,  rested  upon  an  obiter  dictum, 
and  was  therefore  not  law;  and  that  the  court  in  its  judgment 


OF    THE    DRED    SCOTT    DECISION 

as  to  the  citizenship  of  Scott,  which  depended  upon  the  mean 
ing  of  the  word  citizen  as  used  in  that  clause  in  the  Constitu 
tion  conferring  upon  Federal  courts  jurisdiction  over  suits 
between  citizens  of  different  States,  though  not  dictum  was 
in  vital  error  in  its  arguments  and  conclusions.  Not  a  few 
added  to  the  popular  error  by  going  so  far  as  to  declare  that 
the  opinion  read  by  Taney  was  not  the  judicial  opinion  of  the 
court,  but  his  individual  and  therefore  unauthorative  utterance. 
\  In  February,  1865,  it  was  said  in  the  Atlantic  Monthly 
that  Taney  "will  most  likely,  after  the  traitor  leaders,  be  held 
in  infamous  remembrance;"  and  that  he  covered  "the  most 
glorious  pages  of  his  country's  history  with  infamy,  and  in 
sulted  the  virtue  and  intelligence  of  the  civilized  world." 
Sumner  said  that  the  decision  "gave  conspirators  new  confi 
dence."  On  March  26,  1857,  the  New  York  Independent  pro 
nounced  the  opinion  "a  treasonable  attempt"  to  alter  the  law. 
The  same  spirit  of  rebellion  and  insubordination  developed 
widely  throughout  the  North  and  West.  In  later  days  the 
bitterness  is  scarcely  less  pronounced.  For  instance :  Hamp 
ton  L.  Carson,  a  distinguished  member  of  the  Philadelphia 
bar  and  a  well-known  author,  says  that  the  decision  "was  a 
blunder — a  blunder  worse  than  a  crime;"  Henry  W.  Elson 
declares:  "The  great  body  of  the  people  of  the  North,  how 
ever,  condemned  this  unjust  decision  of  the  court;"  while 
Albert  Bushnell  Hart  believes  that  the  "decision  was  so  forced 
and  so  contrary  to  historical  facts  that  the  Republican  leaders 
declared  that  they  were  not  bound  by  it;"  and  James  Ford 
Rhodes  says  that  Taney's  argument  is  "inhuman"  and  "a 
great  piece  of  specious  reasoning,"  "outraging  precedent,  his 
tory  and  justice."  With  one  accord  these  historians  acclaim 
the  judgment  to  be  resting  upon  an  obiter  dictum — some  say 
dicta. 

That  these  charges,  found  in  one  form  or  another  in  his 
tories  and  encyclopaedias  down  to  the  latest,  are  without  foun 
dation  in  law  or  history ;  that  the  decision  of  each  question  was 
valid  and  binding  law;  that  the  repudiation  became  the  most 


8  LEGAL  AND  HISTORICAL  STATUS 

pronounced  nullification,  more  dangerous  and  more  far-reach 
ing  than  anything  of  the  kind  ever  found  in  the  South,  leading 
to  conditions  destructive  of  domestic  peace,  personal  security 
and  happiness  in  the  South,  and  because  of  the  unpardonable 
errors  upon  which  it  rested  inexcusable, — it  is  my  purpose  to 
establish  by  the  evidence  I  present  in  this  work. 

I  have  endeavored  to  present  the  facts  and  the  law  not  in 
the  nature  of  a  lawyer's  brief  but  in  such  impartial  and  judicial 
fulness  as  that  the  lawyer  and  the  student  generally  may  have 
an  authoritative  source-book  upon  the  history  and  the  law 
of  this  great  case.  Incidentally  I  have  tried  to  make  the  dis 
cussion  of  some  practical  value  to  the  busy  member  of  the  bar. 
More  particularly  is  this  true  of  the  examination  of  the  jur 
isdiction  of  Federal  courts,  the  rules  of  pleas  in  abatement 
arising  on  writs  of  error,  the  nature  of  obiter  dicta,  due  pro 
cess  of  law,  and  the  distinction  between  questions  judicial 
and  political.  In  discussing  the  constitutionality  of.  the  Mis 
souri  Compromise  I  have  given  what  I  believe  to  be  both  a 
practical  and  timely  consideration  of  the  powers  of  Congress 
to  legislate  for  a  Territory,  involving  the  application  of  the 
Constitution  to  acquired  territory,  such  as  Porto  Rico  or  the 
Philippines,  which  bring  us  questions  not  different  from  those 
which  the  territory  of  the  Louisiana  Purchase  presented. 

Because  both  interesting  and  necessary  a  careful  history 
of  the  case  and  a  survey  of  the  fundamental  axioms  of  law 
and  government  upon  which  it  rests,  precede  the  examination 
of  the  questions  which  the  record  presented  to  the  court. 
That  the  student  might  have  a  comprehensive  survey  of  the 
essentials  both  of  the  opinion  of  the  court  and  of  the  dissent 
ing  opinions,  together  with  the  applicable'  law  and  the  histor 
ical  facts,  in  a  convenient  compass,  immense  labor  has  been 
necessary.  However,  in  view  of  the  universally  recognized  im 
portance  of  the  case  and  the  indictment  here  brought  against 
history  as  now  generally  written,  the  seriousness  of  the  exami 
nation  fully  justifies  the  labor. 


I. 

AMERICAN   COURTS. 

To  comprehend  the  Dred  Scott  Case  and  the  history 
which  centers  about  its  famous  decision,  it  is  very  important 
that  we  keep  before  the  mind  the  distinction  between  the  courts 
of  a  State  and  the  courts  of  the  United  States.  The  peculiar 
relations  between  the  States  and  the  Federal  Government  give 
us  a  dual  judicial  system,  each  having  its  well-defined  field  of 
jurisdiction. 

At  this  time  we  need  not  enter  the  mooted  question  as  to 
how  the  Federal  Government  was  created.  What  is  the  Fed 
eral  Government,  the  rules  by  which  its  powers  are  determined, 
— especially  its  legislative  and  judicial  powers, — and  what 
rights  look  to  the  Federal  Government  and  what  to  the  State 
government  for  protection,  are  the  questions  that  must  be 
settled  in  order  that  we  may  grasp  the  true  bearing  of  the 
Dred  Scott  decision  upon  the  history  of  this  country. 

Whether  the  Federal  Government  is  the  creature  of  the 
States  in  their  independent  and  sovereign  capacities  or  of  "the 
people  acting  as  sovereigns  of  the  whole  country,"  it  is  certain 
that  the  creators  were  competent  to  invest  the  general  govern 
ment  with  all  the  powers  which  "they  might  deem  proper  and 
necessary;  and  to  extend  or  restrain  these  powers  according 
to  their  own  good  pleasure/'  as  expressed  by  the  Supreme 
Court  in  I8I6.1  Whether  the  Constitution  be  "neither  wholly 
National  nor  wholly  Federal,"  as  suggested  by  Madison  in  the 
Federalist  (No.  39),  it  is  certain  that  the  basal  principle  upon 
which  the  government — the  American  government  with  its 
dual  form,  State  and  Federal — has  been  preserved~ancf  rriain- 

1  Martin  vs.  Hunter,  i  Wheat.  324. 


IO  LEGAL  AND  HISTORICAL  STATUS 

tained  is  "that  there  can  be  no  loss  of  separate  and  independ 
ent  autonomy  to  the  States,  through  their  union  under  the 
Constitution,"  and  that  "the  preservation  of  the  States  t  and 
the  maintenance  of  their  governments  are  as  much  within  the 
design  and  care  of  the  Constitution  as  the  preservation  of  the 
Union,"  as  said  by  the  same  court  in  1868, — a  time  when  but 
for  the  sober  poise  of  that  arm  of  the  government  Union 
would  have  overshadowed  State.2 

The  spheres  of  these  respective  governments  are  equally 
well-defined  and  carefully  preserved. 

"The  government  of  the  United  States  is  one  of  dele 
gated  powers  alone.  Its  authority  is  defined  and  limited  by  the 
Constitution.  All  powers  not  granted  to  it  by  that  instru 
ment  are  reserved  to  the  States  or  the  people.  No  rights  can 
be  acquired  under  the  Constitution  or  the  laws  of  the  United 
States,  except  such  as  the  government  of  the  United  States 
has  the  authority  to  grant  or  secure.  All  that  cannot  be  so 
granted  or  secured  are  left  under  the  protection  of  the  States."3 

"The  general  government  and  the  States,  although  both 
exist  within  the  same  territorial  limits,  are  separate  and  dis 
tinct  sovereignties,  acting  separately  and  independently  of 
each  other,  within  their  respective  spheres.  The  former  in  its 
appropriate  sphere  is  supreme;  but  the  States  within  the  limit 
of  the  powers  not  granted,  or,  in  the  language  of  the  tenth 
amendment,  'reserved'  are  as  independent  of  the  general  gov 
ernment  as  that  government  within  its  sphere  is  independent 
of  the  States.4 

"Within  the  sphere  allotted  to  them,  the  co-ordinate 
branches  of  the  general  government  revolve,  unobstructed 
by  any  legitimate  exercise  of  power  by  the  State  governments. 
The  powers  exclusively  given  to  the  Federal  Government  are 
limitations  upon  the  State  authorities.  But,  with  the  exception 


2Texas  vs.  White,  7  Wall.  724;  also  s'ee  Downes  vs.  Bidwell,  (1901)  182  U.  S. 
351- 

3U.  S.  vs.  Cruikshank,  (1875)  92  U.  S.  551;  Kohl  vs.  U.  S.,  gi  U.  S.  3/2; 
McCulloch  vs.  Maryland,  (1819)  4  Wheat.  406;  Pacific  Ins.  Co.  vs.  Soule,  (1868) 
7  Wall.  444;  Butterfield  vs.  Stranahan,  (1904)  192  U.  S.  492. 

^Collector  vs.   Day,    (1870)    n    Wall.   U.    S.    124. 


OF    THE    DRED    SCOTT    DECISION  II 

of  these  limitations,  the  States  are  supreme;  and  their  sover 
eignty  can  be  no  more  invaded  by  the  action  of  the  general 
government  than  the  action  of  the  State  governments  can  ar 
rest  or  obstruct  the  course  of  the  national  power/'5 

All  branches  of  the  government  recognize  these  definitions, 
repeatedly  announced  by  our  Supreme  Court,  as  clearly  setting 
forth  our  government,  and  from  the  earliest  day  to  this  the 
courts,  the  legislature  and  the  executive  have  based  their  ac 
tions  upon  these  principles.  That  the  court  has  correctly  de 
nned  the  powers  of  the  National  Government  as  thus  so  long 
followed,  is  not  now  questioned  by  any  authority  in  this 
country.  Some  purturbations  occurred  on  the  part  of  the  exec 
utive  and  legislative  branches  in  the  great  upheaval  of  1861 
to  1865,  but  the  judiciary  and  general  common  sense  at  length 
steadied  the  movement  and  the  great  machine  moved  on  none 
the  less  strong  for  the  strain. 

With  our  two  judicial  systems  it  is  readily  seen  that  when 
any  party  believes  himself  aggrieved  and  regards  it  necessary 
to  have  a  court  interpose,  he  must  find  out  in  what  court, 
whether  in  a  State  court  or  before  a  United  States  tribunal, 
he  may  proceed.  Now  and  then  such  a  party  may  have  his 
option,  and  may  bring  his  cause  of  complaint  before  a  certain 
one  of  either  of  these,  in  which  case  the  jurisdiction  is  said 
to  be  concurrent  Instances  of  concurrent  jurisdiction  are  not 
numerous.  Having  examined  the  Constitution  and  laws  of 
Congress  pursuant  thereto,  if  an  aggrieved  party  finds  he  can 
not  sue  in  a  Federal  court,  he  may  always  do  so  in  a  State 
court.  No  man,  not  even  a  slave,  ever  had  a  right  to  be  pro 
tected  or  an  injury  to  redress  but  that  he  had  some  place  in  one 
or  the  other  of  these  American  judicial  systems  where  his 
complaint  would  be  heard  and  determined  according  to  the 
laws  ordained  by  the  people. 

In  his  action  Dred  Scott,  of  course  always  by  his  attor 
neys,  asserted  that  he  had  certain  rights.  Therefore  it  be 
came  necessary  for  the  court  in  which  he  sought  to  enforce 


5Worcester  vs.    Georgia,    (1832)    6   Pet.    (U.    S.)    570. 


12  LEGAL  AND  HISTORICAL  STATUS 

his  alleged  rights  to  determine  as  to  the  correctness  of  his 
claim  of  right  to  use  the  forum  he  sought  to  enter.  Whether 
he  had  such  rights  and  whether  they  were  "left  under  the 
protection  of  the  State"  of  Missouri,  this  being  the  State  in 
which  he  claimed  his  home  and  his  citizenship,  or  whether 
the  alleged  rights  depended  upon  the  protection  of  the  Federal 
Government,  were  questions  which  were  of  first  and  vital 
inquiry  in  both  the  trial  courts  and  the  Supreme  Court  of 
the  United  States,  the  latter  having  been  reached  by  appeal. 

Hence,  with  one  or  two  more  of  the  fundamental  and  bas 
al  principles  of  our  government  as  beacon  lights  kept  well  to 
view,  we  are  prepared  to  follow  the  court  in  the  solution  of  the 
questions  which  this  great  case  involved. 

One  of  the  most  important  of  these  great  head-lights  is 
the  truth -that  the  Constitution  does  not  change;  courts  cannot 
change  it.  In  America  courts  interpret  that  great  instrument 
as  it  was  meant  to  be  when  framed  or  amended  and  ratified 
by  the  States.  "Constitutional  provisions  do  not  change," 
said  our  Supreme  Court  in  In  re  Debs,  in  1895,  "but  their 
operation  extends  to  new  matters  as  the  modes  of  business 
and  the  habits  and  the  life  of  the  people  vary  with  each  suc 
ceeding  generation.  The  law  of  the  common  carrier  is  the 
same  today  as  when  transportation  on  land  was  by  coach 
and  by  wagon,  and  on  water  by  canal  boat  and  sailing  vessel, 
yet  in  its  actual  operation  it  touches  and  regulates  transporta 
tion  by  modes  then  unknown,  the  railroad  train  and  the  steam 
ship.  Just  so  it  is  with  the  grant  to  the  National  Government 
of  power  over  interstate  commerce.  The  Constitution  has  not 
changed.  The  power  is  the  same."6 

Again  and  again  these  truths  have  been  repeated  by  our 
courts  and  by  those,  who  administer  the  affairs  of  government. 
They  have  long  been  with  us  axiomatic.  1  In  the  unchangeable 
nature  of  our  government  lies  one  of  its  sources  of  stability 
In  the  fact  that,  where  factions  differ  as  to  its  power  in  a  give 
case,  our  Supreme  Court,  the  arbiter,  seeks  to  place  itself  i 
nearly  as  possible  in  the  condition  of  the  men  who  frame 

6i58   U.    S.    591. 


OF    THE    DRED    SCOTT    DECISION  13 

the  Constitution  or  any  operative  amendment  thereof,  and  thus 
finding  its  meaning  then  enforce  it  as  understood  when 
adopted,  lies  our  greatest  security.  In  America  the  charter 
of  government  as  written  is  supreme,  and  remains  the  same 
as  when  adopted ;  the  power  to  alter  or  amend  reposes  alone  \ 
with  the  people  of  the  States. 

In  the  fact  that  the  people  of  three-fourths  of  the  States, 
having  written  a  government  guide,  alone  can  change  it  from 
time  to  time  as  conditions  demand  and  that  it  is  supreme  until  j 
thus  changed,  lies  the  chief  hope  of  popular  rule.  That  we  have 
a  written  guide  for  all  departments  of  our  government,  operat 
ing  within  the  sphere  of  the  Nation  and  alike  in  that  of  the 
State  in  so  far  as  applicable,  binding  upon  the  executive,  the 
legislative,  and  the  judicial  branches,  is  one  of  the  happiest 
birthrights  of  the  American  people. 

Repeating  this  great  truth,  our  Supreme  Court  in  decid 
ing  Muller  vs.  Oregon,  Feb.  24,  1908,  said:  "Constitutional 
questions,  it  is  true,  are  not  settled  by  even  a  consensus  of 
public  opinion,  for  it  is  the  peculiar  value  of  a  written  consti 
tution  that  it  places  in  unchanging  form  limitations  upon  legis 
lative  action,  and  thus  gives  a  permanence  and  stability  to  pop 
ular  government  which  otherwise  would  be  lacking."7 

The  next  great  truth  which  we  must  bear  in  mind  in  our 
study  of  this  case  is,  that  the  Supreme  Court  of  the  United 
States  is  the  sword  of  popular  rule.  It  is  the  balance  wheel 
preserving  the  democracy  of  America  from  monarchy  or  plu 
tocracy.  Sovereign  power  is  more  nearly  expressed  and  ex 
ercised  by  our  Supreme  Court  than  by  any  other  branch  or 
branches  of  our  government.  The  distinguished  Englishman, 
Mr.  James  Brdjce,  in  his  The  American  Commonwealth,  has 
said :  "The  Supreme  Court  is  the  voice  of  the  Constitution ;" 
and  Mr.  Justice  Brewer  but  announced  the  settled  rule  when 
he  said: 

"A  tribunal  which,  standing  back  of  legislative  and  exe 
cutive  officials,  could  declare  what  they  attempted  to  do  to  be 
of  no  effect,  because  in  conflict  with  that  organic  instrument 

72o8    U.    S.    420. 


14  LEGAL  AND  HISTORICAL  STATUS 

[the  Constitution],  was  soon  recognized  as  a  factor  of  supreme 
importance  in  the  nation.  And  that  the  Supreme  Court  was 
given  this  power  by  the  Constitution  was  so  clearly  shown  by 
Chief  Justice  Marshall  in  his  opinion  in  Marbury  vs.  Madison, 
i  Cranch,  137,  that  no  one  since  has  seriously  challenged  it." 
And  again  he  said:  "Is  it  too  much  to  say  that  it  is  all-import 
ant  for  the  well-being  of  this  Republic,  that  nothing  should  be 
done  to  abridge  its  [the  Supreme  Court's]  powers  or  hamper 
its  usefulness?  In  its  stability  and  permanence  is  found  assur 
ance  that  popular  government  will  not  degenerate  into  govern 
ment  by  the  mob ;  and  while  it  continues  an  unimpaired  factor 
in  our  national  life  the  Republic  will  live,  a  blessing  to  its 
citizens  and  a  light  to  the  world." 

Therefore,  the  interpretation  of  the  Constitution  by  which 
the  court  was  guided  in  deciding  the  Dred  Scott  Case  was  the 
final  and  binding  law  of  the  land.  Final  in  its  operation  upon 
Congress  and  the  Executive;  and  final  until therequisite number 
of  States  saw  best  to  amend  the  great  charter,  and  give  it  some 
other  force.  The  States  did  not  so  amend,  and  thus  the  peo 
ple  ratified  the  decision,  leaving  those  in  opposition  to  the 
court's  view  no  recourse  except  submission,  rebellion  or,  worse, 
nullification.  A  great  number  of  those  who  would  not  agree 
with  the  court  chose  the  dangerous  expedient  of  nullification. 
For  this  reason  historians  too  often  misrepresent  the  great 
opinion  and,  only  in  milder  terms  than  formerly,  defame  the 
court. 

The  Supreme  Court  of  the  United  States  is  now,  as  it  was 
when  it  rendered  the  Dred  Scott  decision,  composed  of  nine 
judges.  These  are  appointed  by  the  President  of  the  United 
States,  and  confirmed  by  the  Senate.  They  serve  for  life  or 
during  good  behavior.  This  court  sits  in  the  capitol,  in  a 
chamber  formerly  used  by  the  Senate.  One  of  its  members  is 
made  Chief  Justice  and  the  others  are  known  as  associate 
justices.  When  the  Dred  Scott  decision  was  handed  down  in 
March,  1857,  Roger  B.  Taney  of  Maryland  was  Chief  Justice. 


OF    THE    DRED    SCOTT    DECISION  15 

Taney  inherited  slaves,  but  early  in  life  manumitted  them, 
providing  for  two  who  were  old  and  infirm  to  the  day  of  their 
death.  Always,  when  a  practicing  lawyer,  he  rendered  profes 
sional  aid  to  slaves  seeking  the  rights  of  freedom.  Once  he 
defended  a  man  charged  with  inciting  slaves  to  insurrection, 
and  so  intense  was  the  feeling  that  his  life  was  endangered; 
and,  Carson  adds,  "when  pressed  with  the  gravest  business, 
had  been  known  to  stop  in  the  streets  of  Washington  to  help 
a  negro  child  home  with  a  pail  of  water."8  Neither  of  the 
associate  justices  held  slaves;  and  of  the  bench  four  were  from 
States  where  slavery  had  ceased  more  oj  less  to  be  recognized, 
while  five  were  from  States  recognizing  the  legality  of  slavery. 
Of  these  Justices  John  McLean  of  Ohio  was  appointed  in  1829 
and  served  till  he  died  in  1864;  James  M.  Wayne  of  Georgia 
served  from  1833  to  1867;  John  Catron  of  Tennessee  was  on 
the  bench  from  1837  to  1865;  Peter  V.  Daniel  of  Virginia, 
from  1841  to  1860,  at  which  time  he  died;  Samuel  Nelson  of 
New  York,  from  1845  to  l&72'>  Robert  C.  Grier  of  Pennsyl 
vania,  from  1846  to  1869;  Benj/R.  Curtis  of  Massachusetts, 
1851  to  his  resignation  in  1857;  and  James  A.  Campbell  of 
Alabama,  from  1853  to  1861,  when  he  resigned.9 

Judge  Campbell,  having  resigned,  threw  himself  heartily 
into  the  service  of  the  Confederate  States,  serving  with  distinc 
tion.  All  of  the  others,  it  is  seen,  Judge  Daniel  having  died 
before  secession,  remained  loyal  to  the  Union,  and  fought  val- 
iently  to  maintain  inviolate  the  sacred  principles  of  the  Con 
stitution  during  the  strain  of  the  war.  Judge  Curtis,  who  with 
McLean  dissented  in  the  Dred  Scott  Case,  administered  to 
Lincoln  for  his  unconstitutional  so-called  emancipation  pro 
clamation,  the  most  unanswerable  rebuke. 

A  case  having  been  submitted  to  the  court,  five  or  more 
being  agreed  as  to  the  judgment  to  render  therein,  one  of  the 
number  is  selected  to  write  out  the  decision.  In  doing  this  he 
generally  gives  the  reasons  for  the  conclusion,  referring  to  the 


8Hampton    L.    Carson,    The    History   of   the    Supreme    Court,    vol.    2,    372;    Tyler's 
Memoirs  of  Taney,  664. 

9  Thorpe,  Const.   Hist,   of  U.   S.,  vol.   2,   538;  and  the  many  histories   of  the  court. 


1 6  LEGAL  AND  HISTORICAL  STATUS 

Constitution,  to  previous  decisions  of  that  court,  to  the  history 
of  the  country;  and  now  and  then  to  decisions  in  England  or 
other  countries  in  so  far  as  they  give  light  and  show  a  com 
mon  understanding  of  a  given  question.  This  is  called  the 
opinion  of  the  court.  Those  of  the  court  who  do  not  agree  in 
a  conclusion  reached  by  the  majority,  may  write  an  opinion 
of  their  own  and  have  it  put  upon  record ;  and  if  they  do  so  it 
is  called  a  dissenting  opinion.  Dissenting  opinions  by  a  minor 
ity  do  not  affect  the  authority  or  the  validity  of  the  majority 
opinion,  the  latter  is  always  the  opinion  of  the  court.  A 
dissenting  opinion  is  for  the  purpose  of  preserving  the  views 
of  the  minority  and  of  showing  their  good  faith. 

In  the  Dred  Scott  decision  two  of  the  nine  judges  dis 
sented,  and  this  is  what  Mr.  Lincoln  meant  when  he  talked  so 
often  of  "a  divided  court."  Each  member  wrote  and  had  re 
corded  his  reasons  for  dissent  from  or  agreement  with  Judge 
Taney.  However,  decisions  where  a  minority  of  the  court 
dissents  are  numerous,  some  of  our  best  law  having  been  deter 
mined  by  a  division  of  four  to  five. 

There  is  nothing  strange  and  nothing  derogatory  to  the 
highest  validity  in  that  we  find  each  judge  giving  some  ex 
pression  as  to  the  logical  process  by  which  he  reached  an 
agreement  with  the  majority  opinion  and  judgment.  Each 
felt,  as  judges  quite  often  do,  that  he  could  express  himself 
more  clearly  than  could  another  for  him.  One  of  our  most 
reliable  law  authorities,  speaking  of  judicial  opinions  in  gen 
eral,  says :  "While  the  opinion  announces  the  decision  of  the 
court,  it  does  not  follow  that  each  member  has  arrived  at 
his  conclusion  by  the  same  reasoning  or  bases  it  on  the  same 
principles.10 

Our  judicial  reports  abound  in  cases  where  members  of 
the  court  differed  as  to  reasons  or  grounds,  yet  concurred  in 
conclusions  and  opinions.  An  instance  is,  Hawaii  vs.  Manki- 
chi,  190  U.  S.,  218.  Justice  White,  with  whom  Justice  McKen- 
na  agreed,  said :  "I  concur  in  the  meaning  of  the  act  [of  Con- 


1026    American   and    English    Enc.    Law,    2d    ed.,    170,    and    the    cases    there    cite.'. 


OF  THE  DRED  SCOTT  DECISION  I/ 

gress]  as  explained  in  the  opinion  of  the  court,  and  in  the 
main  in  the  reasoning  by  which  that  interpretation  is  elucidated. 
I  prefer,  however,  to  place  my  concurrence  in  the  judgment 
upon  an  additional  ground  which  seems  to  be  more  funda 
mental."  And  this  assent  of  White  and  McKenna  was  nec 
essary  to  a  judicial  decision,  more  so  than  was  the  assent  of  any 
one  of  the  court  to  the  Chief  Justice's  opinion  in  the  Scott 
case,  for  in  the  Hawaiian  case  four  of  the  nine  dissented.  Yet 
no  one  has  ever  questioned  the  authority  and  binding  force 
of  the  latter  decision. 

In  fact,  great  numbers  of  decisions  and  opinions  in  cases 
that  have  settled  far  reaching  and  basal  principles  have  been 
determined  by  a  divided  court.  In  the  last  few  years  three 
famous  decisions  under  the  Sherman  law,  the  well-known  In 
sular  Cases,  the  Income  Tax  Cases,  and  the  Lottery  Case, 
have  been  decided  by  five  to  four.11  ^-When  Lincoln  and  a 
furious  North,  for  want  of  logic,  derided  the  Dred  Scott  deci 
sion,  rendered  judicial  by  7  to  2,  they  forgot  that  the  world 
long  before  them  quietly  and  without  derision  acquiesced  in 
decisions  by  divided  courts;  and  today  he  would  be  esteemed 
traitorous  who  would  advocate  the  nullification  of  a  decision 
by  our  Supreme  Court  though  made  by  the  narrow  margin 
of  frve  to  four.12 


nThe    Nat.    Corporation    Reporter,    1906,    for   a   specific    list. 

^Decisions  of  courts  of  last  resort,  both  in  the  States  and  of  Federal  courts, 
are  reported  in  bound  volumes'.  Such  courts  have  an  official  reporter  whose  business 
it  is  to  prepare  these  reports  under  the  supervision  of  the  court.  Benjamin  C. 
Howard  was  such  reporter  when  the  Dred  Scott  Case  was  decided.  He  published 
the  opinion  in  the  nineteenth  volume  of  his  reports;  and  therefore  lawyers  refer 
to  it  as  "19  Howard."  In  more  recent  years  the  decisions  of  both  State  and  Federal 
courts  are  no  longer  indicated  by  the  name  of  the  reporter.  They  are  now  known 
as  United  States  reports,  Virginia  reports,  New  York  Appellate  reports,  and  so  on 
as  the  case  may  be. 


II. 

HISTORY  OF  THE  QASE. 

In  all  history  territorial  expansion  has  been  accompanied 
by  bitter  contests.  Bloodshed  and  cruelty,  stratagem  and 
unmasked  force,  shameless  diplomatic  rascality  and  dark  gov 
ernmental  intrigues  cloud  the  titles  to  the  greater  number  of 
the  world-political  geographic  divisions.  As  westward  with 
an  ever  widening  angle  the  American  people  poured  in  cease 
less  streams  across  rivers,  prairies  and  mountains,  ma*h's  more 
savage  nature  burst  forth  into  similar  battle.  The  varied  cli 
mate  of  the  States  from  the  bleak  hills  of  northern  New  Eng 
land  down  to  tropical  Florida  and  Louisiana,  and  the  variety 
of  natural  resources,  with  intercommunication  slow  and  ex 
pensive,  determined  industries  and  labor  systems,  producing 
antagonistic  sectional  interests.  These  natural  conditions 
evolved  from  a  labor  system  once  common  to  the  Union,  two 
systems,  and  two  more  antagonistic  it  would  be  hard  to  im 
agine.  Conscience  and  philanthropy  had  as  little  to  do  with 
the  conversion  of  the  slave  system  of  the  North  into  free- 
labor,  as  they  have  in  throttling  today  monopolistic  predatory 
invasions  of  vast  wealth.  Moving  down  from  the  North  and 
reaching  out  from  the  South,  "in  the  days  of  our  continental 
expansion  these  antagonistic  systems,  fundamental  and  in 
the  vanguard  of  the  two  lines  of  march  because  of  the  basal 
and  preeminent  nature  of  labor,  disputed  with  each  other  for 
supremacy  in  our  new  Territories.  The  grapple  was  relentless. 
The  bowie-knife  and  the  Sharps'  rifle/the  torch  and  the  cut 
lass  left  their  deep,  gore-stained  .traces. 

Having  grown  into  manufacturing  and  shipping  interests, 
the  North  found  not  only  that  the  negro  slave  had  not  the 

18 


OF    THE    DRED    SCOTT    DECISION  IQ 

intelligence  to  do  the  work  of  the  mills,  but  that  the  slave  sys 
tem  in  the  South  to  which  the  mills  looked  for  buyers,  did 
not  furnish  the  markets  essential  to  the  highest  prosperity. 
The  white  laborer  from  the  North,  having  found  the  mills  and 
ships  overcrowded  and  agriculture  unprofitable,  shrank  from 
contact  with  the  slave-labor  system  because  it  monopolized  the 
labor  market  and  created  for  the  white  laborer  a  social  odium. 
Slave  labor  placed  the  white  laborer  at  a  serious  disadvantage. 
During  its  days  of  economic  profit,  the  slave  system,  favored 
by  nature,  made  the  South  affluent  as  a  section,  gave  time  for 
culture,  the  study  of  government,  and  the  development  of  court 
ly  qualities  inherent  in  the  white  race  of  the  South.  So  the  poli 
tician  of  the  North  found  in  his  southern  competitor  an  able 
and  dangerous  obstacle,  one  both  ambitious  and  competent  to 
rule,  and  who  in  the  administration  of  the  affairs  of  govern 
ment  was  opposed  to  government  paternalism  over  the  manu 
facturing  interests  of  the  North.  Truis^diejabor_system  of  the 
South  found  opposition  in  the  combined  labor,  capital  and  polit 
ician  of  the  North.  In  this  opposition  the  fanatic  and  insane 
ly  conscientious  found  a  fertile  field. 

The  Constitution  of  the  United  States  left  to  each  State 
the  right  and  power  to  legalize  and  continue  African  slave  la 
bor."  "^Having  "been  established"  by  the  laws  of  a  State,  the 
Federal  Government  by  the  Constitution  was  pledged  to  pro 
tect  and  return  fugitives  from  the  system,  such  fugitives  having 
escaped  beyond  the_terr_itprial  limits  of  the  slave-labor  State. 
Hence  the  control  of  a  Territory,  which  rapidly  grew  to  State 
hood  with  power  to  create  or  destroy  domestic  slavery,  became 
important  to  the  slave  owner  who  wished  to  seek  his  fortune 
in  the  new  West,  and  to  the  politician,  to  the  white*  laborer, 
and  to  the  manufacturer  who  coveted  markets  such  only  as 
free-labor  would  open.  Thus  between  the  North  and  the  South  1 
antagonistic  theories^of  government  became  constantly  more 
pronounced. 

The* admission  of  the  State  of  Missouri  in  1820  brought 
to  the  front  the  most  astute  generals  representing  these  differ- 


\ 


2O  LEGAL  AND  HISTORICAL  STATUS 

ent  theories  of  government.  Representatives  from  the  North 
refused  to  admit  the  Territory  to  be  known  as  Missouri  as  a 
State  until  she  should  by  her  constitution  forbid  domestic 
slavery,  notwithstanding  her  many  thousands  of  slaves  recog 
nized  by  the  Federal  Government  as  valuable  property.  The 
people  of  Missouri  were  clearly  entitled  to  be  recognized  as 
a  State,  and  to  avoid  the  injustice  threatened  by  the  obstruc 
tionists,  an  adjustment  was  finally  reached,  known  as  the 
Missouri  Compromise,  by  which  the  State  was  admitted,  and 
a  provision  incorporated  into  the  bill  forbidding  slavery  in  that 
Territory  of  the  Louisiana  Purchase  outside  of  Missouri  and 
north  of  thirty-six  degrees  and  thirty  minutes  north  latitude. 

The  divergent  views  of  the  nature  of  the  Federal  Gov 
ernment  and  of  the  power  of  Congress  over  territory  acquired 
by  the  United  States,  differences  that  had  begun  to  manifest 
themselves  in  1803  when  Jefferson  acquired  the  Louisiana  Pur 
chase,  that  became  prominent  in  the  dispute  over  the  admission 
of  Missouri,  became  more  pronounced  as  each  further  acquisi 
tion  of  territory  was  made  and  each  time  Congress  came  to 
discuss  or  legislate  for  such  domain. 

In  general  propositions  from  Southern  statesmen  were 
charged  with  having  the  ulterior  purpose  of  extending  slavery 
for  slavery's  sake.  While,  in  fact,  in  the  main  the  issues  had  in 
trinsic  value,  and  concerned  the  very  life  of  the  American 
government,  regardless  of  whether  the  maintenance  of  the 
principles  involved  would  favor  either  slavery  or  anti-slavery. 
Writers  of  today,  as  did  those  who  lived  through  the  more 
strenuous  time  of  our  history,  too  often  make  the  mistake  of 
measuring  the  contentions  of  those  days  by  the  slavery  stand 
ard  too  exclusively.  Had  the  views  of  those  who,  in  the  main, 
were  anti-slavery  because  of  geography  and  climate,  prevailed, 
the  most  happy  safeguard  of  what  we  call  the  American  gov 
ernment  would  long  since  have  perished. 

After  the  battle  over  Missouri  with  its  resulting  Mis 
souri  Compromise  law,  the  request  of  President  Polk  in  his 
message  of  August  8,  1846,  that  Congress  furnish  money  to 


OF    THE    DRED    SCOTT    DECISION  2} 

adjust  the  boundary  between  Mexico  and  the  United  States 
by  the  purchase  of  certain  Mexican  territories  outside  of  Texas, 
brought  the  antagonistic  forces  again  to  sharp  issues.  David 
Wilmot,  a  Democrat  from  Pennsylvania,  offered  an  amend 
ment  to  the  bill  appropriating  money  for  the  purchase  of  the 
country  the  proposed  action  would  bring  us.  This  is  the 
famous  Wilmot  Proviso,  which  prohibited  slavery  in  the  ter 
ritory  thus  proposed  to  be  purchased.  As  thus  amended  the 
bill  passed  the  House,  but  failed  in  the  Senate;  and  in  the 
next  year  another  bill  with  a  similar  provision  passed  the 
House,  but  the  amendment  was  omitted  in  the  Senate. 

It  was  this  bill  which  gave  the  logic  of  John  C.  Calhoun 
another  opportunity.  He  insisted  that  the  Constitution,  ex 
proprio  vigore,  extended  to  the  Territories.  This  is  what 
Benton  ironically  called  "the  transmigration  of  the  Constitu 
tion."  Bitterly  and  with  all  his  powerful  sarcasm  Benton 
opposed  the  doctrine,  insisting  that  the  Constitution  was  ap- 
.  plicable  alone  to  the  States.1 

In  1849  when  Congress  came  to  legislate  for  California 
and  New  Mexico,  territory  lately  acquired  from  Mexico,  the 
debate  was  renewed  with  great  vigor,  especially  in  the  Senate. 
Berrien  of  Georgia,  Dayton  of  New  Jersey,  Webster  and 
Calhoun  arose  to  their  greatest  heights.  Said  Wrebster :  "Let 
me  say  that  in  the  general  sense  there  is  no  such  thing  as 
extending  the  Constitution.  The  Constitution  is  extended  over 
the  United  States  and  over  nothing  else.  It  cannot  be  ex 
tended  over  anything  except  the  old  States  and  the  new  States 
that  shall  come  in  hereafter  when  they  do  come  in.  There 
is  a  want  of  accuracy  of  ideas  in  this  respect  that  is  quite  re 
markable  among  eminent  gentlemen,  and  especially  profession 
al  and  judicial  gentlemen.  It  seems  to  be  taken  for  granted 
that  the  right  of  trial  by  jury,  the  habeas  corpus  and  every 
principle  designed  to  protect  personal  liberty,  is  extended  by 
force  of  the  Constitution  itself  over  new  territory.  That 
proposition  cannot  be  maintained  at  all.  .  .  .  Altogether  im- 


1  Benton,    Thirty    Years'    View,    v.    2,    713. 


22  LEGAL  AND  HISTORICAL  STATUS 

practical,"  he  concludes  and  "utterly  impossible  to  extend  the 
Constitution  of  the  United  States  to  the  Territories." 

How  far  short  in  this  doctrine  the  "Great  Expounder" 
fell,  is  well  known  to  every  constitutional  lawyer. 

In  reply  Calhoun  said :  "Well,  then,  the  proposition  that 
the  Constitution  does  not  extend  to  the  Territories  is  false  to 
that  extent.  How  else  does  Congress  obtain  the  legislative 
power  over  the  Territories?  ...  If  the  Constitution  does  not 
extend  there,  you  have  no  right  to  legislate  or  to  do  any  act 
in  reference  to  the  Territories.  .  .  .  [The  Constitution]  is 
the  supreme  law,  in  obedience  to  which  and  in- conformity  with 
which  all  legislative  enactments  must  be  made." 

Douglas,  later  to  become  famous  for  his  relation  to  the 
Kansas-Nebraska  bill,  explained  that  he  did  not  believe  that 
the  Constitution  c.v  proprio  z'igore  extended  to  the  Territories, 
but  that  he  believed  that  Congress  had  "the  power  to  extend 
it  in  all  its  parts,  over  that  country ;  and  that  such  extension, 
in  his  opinion,  made  the  Territory  a  State,  entitled  to  repre 
sentation  in  Congress,  in  a  quasi  condition  until  it  could  elect 
its  representatives  to  Congress  and  organize  its  State  govern 
ment.  "- 

There  was  no  decision  of  the  Supreme  Court,  the  arbiter 
of  last  resort  in  such  questions,  by  which  it  could  be  known 
which  contention  was  the  correct  one,  so  the  great  party  lead 
ers  reargued  their  respective  positions  with  each  new  occasion. 
In  the  main  the  views  of  Calhoun  and  those  who  concurred 
with  him  obtained,  and  the  supremacy  of  the  Constitution  saved 
us  from  degenerating  from  a  democracy.  Ever  alert,  the 
school  of  Webster  and  Benton  watched  for  opportunities  to 
sustain  their  contentions.  So,  Congress  having  refused  to  fol 
low  Webster,  his  forces  turned  to  the  courts  as  the  last  source 
from  which  it  might  be  possible  to  retake  the  lost  field. 

However,  before  noticing  the  specific  instance  by  which 
it  was  hoped  to  retrieve  their  losses,  it  is  important  to  re 
member  that  as  territorial  expansion  went  rapidly  westward 


2Cong.   Globe,   30    Cong.,   2d  sess.,  v.   20,  255   et  seq. 


OF    THE    DRED    SCOTT    DECISION  23 

with  it  developed  on  the  part  of  the  North,  not  an  effort  to) 
destroy  slavery  because  it  was  slavery,  but  a  bitter  antipathy  to 
the  negro,  the  free  negro  quite  as  much  as  the  slave;  and  hence 
an  antagonism  to  slavery  because  of  the  fact  that  it  carried  . 
with  it  the  negro.  Nowhere  was  this  feeling  more  implacable  | 
than  in  the  newer  Northwest  States  and  in  the  Territories. 
This  opposition  to  the  negro,  regardless  of  his  condition,  gath 
ered  its  strength  into  what  came  to  be  known  as  the  Free- 
Soil  party.  In  1848  this  party  nominated  and  supported 
Martin  Van  Buren  for  President  and  Charles  Francis  Adams 
for  Vice-President.  Later  the  anti-negro  and  anti-slavery 
forces  assumed  the  name  of  Free-State  party,  and  in  1859, 
furnished  the  bulk  of  the  material  for  the  Republican  party 
which  elected  Mr.  Lincoln.  Those  affiliated  with  these  various 
parties  proposed,  as  they  had  done  in  Kansas,  and  earlier  in 
Oregon,  to  build  governments  for  great  States  ''for  free  white 
men  only;"  and  to  so  safeguard  these  local  governments,  as 
they  had  done  in  Illinois  and  in  Ohio,  that  free  negroes  would 
have  no  part  and  under  which  they  would  have  few  rights 
which  the  white  man  was  bound  to  respect,  and  under  which 
a  free  negro  had  no  legal  right  to  live  as  a  citizen.  Thus  by 
local  laws  the  free  negro  was  debarred  the  right  of  imigration 
and  of  residence  as  he  might  choose. 

This  fight  against  the  negro,  it  was  foreseen,  would  be 
easier  could  the  Federal  Government  be  brought  to  protect 
the  Territory,  and  so  by  1859  the  Republicans  had  grown  in 
sistent  that  the  government  not  only  should  prohibit  slavery 
in  the  Territories,  but  that  under  the  Constitution  the  gov 
ernment  could  not  do  otherwise.  At  the  same  time,  little  con 
cerned  for  the  slave  as  such,  it  was  proposed  existing  slavery 
be  made  express  and  irrevokable.3 

From  the  ranks  of  these  parties  came  the  means  for  the 
prosecution  and  from  their  leadership  came  the  men  who 
instituted  and  who  conducted  to  its  conclusion  the  Dred  Scott 
Case. 


'See    platforms    of    1856    and    1859.       Stanwood,    A    Hist,    of    the    Presidency,    293. 


24  LEGAL  AND  HISTORICAL  STATUS 

Dred  Scott,  of  pure  African  descent,  was  born  of  slave 
parents  in  Virginia  the  slave  of  Captain  Peter  Blow.  His 
master  carried  Dred  to  Missouri  about  1827;  and  there,  in 
1834  or  1835,  he  was  purchased  as  a  slave  by  Dr.  John  Emer 
son.  Dr.  Emerson  was  a  native  of  Pennsylvania,  and  from 
that  State  had  been  appointed  as  an  assistant  surgeon  in  the 
regular  United  States  army.  He  was  honorably  discharged 
from  the  army  in  1842,  and  died  shortly  thereafter.4  But  so 
far  as  the  courts  knew,  and  as  appeared  by  the  record,  Emer 
son  was  a  citizen  of  Missouri.5 

In  July,  1847,  *n  the  State  circuit  court  for  the  county  of 
St.  Louis,  Missouri,  an  action  was  instituted  in  which  it  was 
asked  that  Scott  be  adjudged  a  freeman.  In  this  suit,  brought 
against  Emerson's  widow,  the  administrator,  and  his  surety, 
it  was  alleged  that  Emerson  purchased  Scott  in  1835,  and 
that  about  1836  or  1837  he  had  been  carried  by  the  purchaser 
"from  the  State  of  Missouri  to  Fort  Snelling,  under  the  juris 
diction  of  the  United  States  and  in  the  Territory  formerly 
known  as  Louisiana,  and  there  held  in  slavery  in  violation  of 
the  Missouri  Compromise." 

In  November,  1847,  an(l  while  the  first  action  was  yet 
pending,  a  second  suit  in  the  same  court  and  against  the  same 
parties  was  instituted.  This  is  what  is  known  as  a  trespass  ac 
tion,  and  its  technical  name  has  misled  some  authors  to  state 
that  Scott  had  been  whipped.6  Nothing  in  any  record  any 
where  indicates  that  Scott  or  any  of  his  family  was  ever  struck. 
In  this  later  action  it  was  alleged  generally,  being  left  to  the 
trial  to  give  specific  grounds,  that  Scott  was  "a  free  person,  and 
that  the  said  defendants  had  held  and  still  hold  him  in  slavery, 
and  other  wrongs  to  the  said  plaintiff  then  and  there  did 
against  the  laws  of  the  State  of  Missouri."  In  April,  1847, 
this  action  was  tried  before  a  jury  who  rendered  a  verdict 


*F.    B.    Heitman,    Hist.    Reg.    and    Dec.    (1903);    W.    H.    Powell,    List    of   Officers 
U.    S.   A.,    1779  to   1900,  301. 

3  19  How.    527. 

6  Fiske,    Hist.    U.    S.     (school    ed.),    360;    Francis    Curtis,    The    Republican    Party, 
vol.    2,    276;    and    many    others. 


OF    THE    DRED    SCOTT    DECISION  25 

against  Scott.  In  December,  1847,  this  verdict  was  set  aside 
and  a  rehearing  ordered.  At  this  hearing  Scott  offered  as  his 
evidence  the  facts  of  his  original  slavery,  the  purchase,  and 
that  from  Missouri  he  had  been  carried  to  Rock  Island,  a  mili 
tary  fort,  in  the  State  of  Illinois;  and  from  there  to  Fort 
Snelling,  in  a  Territory  of  the  United  States  (now  Minnesota), 
and  at  each  place  detained  in  servitude  about  two  years,  his 
master  being  a  sojourner  and  under  orders  from  the  govern 
ment.  Upon  these  facts  the  judge  instructed  the  jury  to 
bring  in  a  verdict  for  Scott.  Thereupon  the  defendants  ap- 
pealed  to  the  supreme  court  of  the  State.  In  1852,  the  matter 
resting  purely  upon  questions  of  law,  the  case  came  up  for  hear 
ing  by  the  State  supreme  court.  Of  the  three  justices  then  com 
posing  the  court,  two  concurred  and  one  dissented.  The  ma 
jority  held  that  the  circuit  judge  was  in  error  as  to  the  law. 
Having  been  a  slave  under  and  pursuant  to  the  laws  of  Mis 
souri,  having  been  temporarily  out  of  Missouri,  having  been 
held  as  a  slave  while  away,  having  been  returned  as  a  slave  and 
having  sued  there,  the  higher  court  held  that  however  valid 
any  anti-slavery  laws  out  of  Missouri  might  be,  they  were  not 
and  could  not  be  operative  in  Missouri,  that  they  were  penal 
in  their  nature,  and  would  not  be  enforced  by  a  Missouri 
court,  because  in  conflict  with  her  policy  and  laws.  No  one 
claimed  that  either  law  the  benefit  of  which  Scott  invoked  had 
any  jurisdiction  in  Missouri^  The  first  claim  was  based  upon 
the  old  Ordinance  of  1787,  in  so  far  as  it  was  of  force  in 
Illinois.  Historians  since  however,  have  enlarged  upon  the 
claims  of  the  sojourn  in  Illinois.7  Illinois  was  not,  as  has  been 
said  by  some8  "doubly  protected  against  slavery;"  there  was 
no  law  whatever  of  that  State  under  which  Scott  could  have 
been  adjudged  free  even  had  he  sued  while  there.  Illinois 
was  protected  against  the  free  negro;  and  at  no  time  did  she 
enact  any  law  to  enable  a  slave  from  any  other  State  to  assume 
the  status  of  a  freeman.  Repeatedly  her  highest  courts  held  the 


HThorpe,    Const.    Hist.    U.    S.    (1901),    537- 

\  X 

8Hill,    Decisive    Battles    of    the    Law,    2jft .  / 

\\1 


26  LEGAL  AND  HISTORICAL  STATUS 

Ordinance  of  1787  to  be  void  and  inoperative,  upholding  her 
local  slave  laws.9  So  as  a  question  of  law,  the  Missouri  State 
trial  court  was  in  error,  and  therefore  it  was  reversed  and 
the  case  sent  back  for  a  new  trial  pursuant  to  law  as  laid  down 
by  the  higher  court.10 

In  1848  the  first  and  original  action  had  been  dismissed, 
and  now  it  was  agreed  that  the  pending  action  should  stand 
upon  the  court  docket  until  a  hearing  could  be  had  in  the 
United  States  court  in  which  Scott's  lawyer  said  he  wished 
also  to  sue.  Accordingly  R.  M.  Field,  a  well-known  St. 
Louis  attorney,  representing  Scott,  in  November,  1853,  be 
gan  an  action  in  the  Federal  circuit  court  for  the  district  in 
which  St.  Louis  is  located,  -rln  May,  1854,  the  catise 
went  before  a  jury,  who  found  against  Scott  and  his 
family.  Thereupon,  a  new  trial  having  been  refused,  an 
appeal  based  upon  exceptions  to  the  rulings  of  the  trial 
court,  was  taken  to  the  Supreme  Court  of  the  United 
States.  The  facts  of  the  State  action,  the  nature  of  its  de 
cisions,  and  its  abeyance  until  the  decision  of  the  Federal 
cause,  were  set  out  in  the  record  which  thus  came  before  the 
highest  Federal  court.1^  When  a  final  decision  should  have 
been  reached  in  the  State  courts,  an  appeal  to  the  Supreme 
Court  of  the  L"nited  States  could  have  been  taken,  Federal 
laws  involved  being  ground  of  appeal.  Such  an  appeal  would 
have  brought  up  every  question  of  merit  of  the  case  before  the 
highest  court.  But  Field  was  a  determined  Free-Soiler,  12 
and  since  Scott's  cause  was  not  to  be  benefitted  by  a  new  action 
in  a  Federal  court,  Field  must  have  had  some  political  purpose 
in  his  move/ especially  since  it  was  not  probable  the  new  ac 
tion  could  be  terminated  more  speedily  than  the  action  in  the 
State  court. 

Remember  that  the  jurisdiction  of  Federal  courts  is  lim- 


8Ewing,  Nor.   Reb.   and   So.    Ses'sion,   chap,   v  and  vi;  and  infra.  , 

10i5    Mo.    582. 

nTranscript  of  Records,  1856,  U.  S.  Sup.  Court  Clerk's  Office,  vol.  -*,  No.  3, 
p.  65  (ii). 

12  Clesky's  Pol.  Text-Book,  1860,  207;  Benjamin's  Speech  in  U.  S.  Senate,  March 
3,  1858. 


OF    THE    DRED    SCOTT    DECISION  2.J 

ited  to  cases  defined  by  the  Constitution.  One  such  ground  is 
where  litigants  are  citizens  of  different  States.  There  being 
no  other  ground  for  original  Federal  jurisdiction,  itTwas  "de 
clared  that  Scott  was  a  citizen  of  Missouri,  that  he  had  been 
purchased  and  was  being  held  in  slavery  by  John  F.  A.  Sand- 
ford  (Sanford,  as  the  name  is  usually  spelled),  and  that 
Sandford  was  a  citizen  of  the  State  of  New  York.  This 
was  a  pure  fiction;  but  Sandford  was  the  brother  of  Dr. 
Emerson's  widow,  and  all  parties  connived  for  the  purpose 
of  reaching  the  court  with  all  questions  they  wished  decided. 
Too  long  it  has  been  believed  that  "as  the  wily  chiefs 
of  Democracy  were  casting  about  for  a  feasible  plan  of  ac 
tion"  in  an  alleged  "effort  to  fasten  slavery  upon  the  Terri 
tories,"  they  instituted  and  prosecuted  the  Dred  Scott  Case. 
Neither  these  "wily  chiefs"  nor  any  Southern  leaders  were 
directly  or  indirectly  responsible  for  this  case.  That  they 
were  not  and  that  the  case  was  a  political  probe  used  by  wily 
Northerners,  aggressive  free-soilers  and  Republicans,  is  the 
more  clear  when  we  remember  that  the  collusion  as  to  sale  re 
sorted  to  in  order  to  reach  the  Federal  court,  was  between 
Scott's  lawyers  and  Sandford,  of  New  York,  all  anti-South 
ern,  Dr.  Chaffee  of  Massachusetts,  a  Republican  member  of 
Congress  being  a  party  to  the  agreement.  If  there  had  ever 
been  hope  of  recovering  damages  against  Emerson's  estate,  in 
confirmation  of  which  the  evidence  is  entirely  lacking,  some 
times  given  as  the  early  motive  for  the  institution  of  the 
suit,  this  hope  was  abandoned  in  the  interest  of  the  desire  en 
tertained  by  Northern  leaders  to  obtain  some  advantage 
against  the  South  and  the  Democrats.  Sandford  could  not 
have  been  held  liable  for  damages  alleged  to  have  accrued 
prior  to  his  purchase,  and  as  no  effort  was  made  to  show 
ownership  ior  any  time  before  the  Federal  action,  nothing 
more  than  nominal  damages  could  have  been  obtained  against 
him.  The  claim  that  Scott  had  been  by  Sandford  heavily 
damaged,  set  up  in  the  declaration,  was,  therefore,  no  more 
than  a  blind  to  hide  the  real  purpose  of  the  politicians. 


28  LEGAL  AND  HISTORICAL  STATUS 

Of  the  questions  involved  in  the  case  as  presented  to  the 
Federal  courts,  that  of  the  constitutionality  of  the  Missouri 
Compromise  was  the  greatest.  Constantly  stronger  up  to 
the  institution  of  this  Federal  action  had  grown  the  conviction, 
North  and  South,  that  the  prohibition  imposed  by  the  Missou 
ri  Compromise  was  contrary  to  both  the  letter  and  fair  in- 
tendment  of  the  Constitution;  and,  for  that  reason,  at  the 
very  institution  of  the  Federal  suit,  its  -repeal  trembled  in 
the  balance.  If  the  Supreme  Court- of-- the  United  States 
should'  declare  such  a  measure  warranted  by  the  Constitution 
as  many  especially  in  the  North  confidently  believed  it  would, 
then  thfe  great  argument  in  favor  of  the  repeal  would  be 
swept  from  the  Democrats.  The  next  year,  1854,  and  shortly 
after  the  institution  of  the  Federal  action,  the  Democrats  hav 
ing  a  majority  in  Congress,  the  Missouri  Compromise  was 
actually  repealed;  but  the  North  was^so  determined  on  saving 
the  Territories  for  her  emigrating  white  laborers,  for  free 
white  peopl^  only,  that  the  next  session  of  Congress  found  the 
Democratic  iriajority  reduced  to  a  minorityrand  a  crusade 
for  the  restoration  of  the  prohibition  relentlessly  begun.  So 
the  power  of  Congress  to  enact  such  a  prohibition  remained  a 
vital  issue  in  tie  casefa  case  destined  to, become  one  of  the 
most  famous  iii  American  history.  — •<•' 

The  widow  Emerson  married  Dr.  C.  C.  Chaffee  of  Mas 
sachusetts.  About  the  time  the  case  was  disposed  of  by  the 
Supreme  Court,  Dr.  Chaffee  was  representing  his  State  in 
Congress.  He  was  a  radical  Republican — a  member  of  what 
was  known  as  the  "Black  Republican  Party."  In  May  fol 
lowing  the  court's  final  decree,  Dr.  Chaffee  conveyed  Dred 
and  his  family  to  Taylor  Blow  of  St.  Louis,  on  condition  that 
they  be  emancipated,  and  it  is  said  that  this  was  done  on 
May  26.13  May  27  the  St.  Louis  Republic  said:  "Old  and 
worn  out"  Scott  "will  have  a  hard  time  to  make  a  living  if  he 
is  forced  to  depend  upon  the  charities  of  Black  Republicans 
and  abolitionists." 


13  Boston   Courier,  quoted   in  Providence,  R.  I.  Post,  March   17,    1857;    Washington 
City    Union,   June  2,    1857. 


OF    THE    DRED    SCOTT    DECISION  2Q 

As  I  write  this  I  have  before  me  a  letter  from  the 
circuit  court  clerk  of  the  eighth  judicial  circuit,  St  Louis,  saying 
that  "after  diligent  search"  he  is  unable  to  find  the  deed 
emancipating  Scott.  One  evidently  was  made,  since  its  men 
tion  is  found  in  the  index.  But  from  all  I  am  able  to  gather, 
I  am  confident  that  no  provision  was  ever  made  for  Scott's 
old  age.  His  Massachusetts  master  and  mistress  simply  turned 
him  loose  to  wander  the  streets  of  St.  Louis,  get  odd  jobs 
when  he  could,  and  shift  as  circumstances  permitted.14  At 
one  time,  there  seems  to  be  no  doubt,  Dred  offered  to  buy  his 
freedom  of  Mrs.  Emerson,  tendering  her  his  market  value  in 
cash  and  good  security,  but  she  refused  the  offer.  A  great 
anti-Southern  party  needed  him,  and  he  was  not  emancipated 
until  he  had  served  their  purpose  and  was  no  longer  of  any 
personal  or  political  value.  The  New  Hampshire  Patriot  and 
State  Gazette  gives  the  Springfield,  111.,  Argus  the  credit 
for  discovering  Scott's  Northern  slave-master.  Says  the  Ga 
zette  :  "That  paper  first  exposed  to  the  world  that  a  Black  Re 
publican  freedom-shrieking  member  of  Congress  from  Mas 
sachusetts  was  the  owner  of  that  family  of  slaves,  and  that  the 
suit  for  their  freedom  was  in  fact  opposed  for  his  benefit."  rj 
In  the  New  York  Tribune  for  March  17,  1857,  there  is  a  letter 
from  Dr.  Chaffee  purporting  to  explain  his  relation  to  Dred. 
The  letter  shows  his  evident  embarrassment;  Chaffee  feebly 
claims  he  did  not  own  Scott,  yet  the  doctor  impeaches  that 
claim  by  immediately  manumitting  the  negro. 

Upon  the  trial  in  the  Federal  circuit  court  H.  A.  Garland 
for  Sandford  and  R.  M.  Field  for  Scott  entered  into  a  writ 
ten  statement  which  went  to  the  court  as  "the  facts  of  the 
case."  So,  at  all  times  the  questions  for  the  courts  were 
purely  those  of  law  arising  upon  the  admitted  facts.  In  the 
lower  court  Field  was  assisted  by  Francis  P.  Blair,  also  an 
eminent  St.  Louis  lawyer,  an  active  member  of  the  Free-Soil 
party,  and  later  a  stanch  Republican.  After  the  case  had 


ric* 


14  St.   Louis  News,   April  8,   1857,   and  N.    Y.    Tribune,   April    10. 
l5See   issue   of   June   3,    1857. 


3O  LEGAL  AND  HISTORICAL  STATUS 

reached  the  Supreme  Court  of  the  United  States,  it  was  argued 
from  the  standpoint  of  the  party  behind  the  case  and  that  was 
furnishing  funds  for  its  prosecution,  by  Montgomery  Blair, 
postmaster  general  under  President  Lincoln,  a  brother  of 
Francis  P.  Blair,  and  George  T.  Curtis,  a  brother  of  Mr. 
Justice  Curtis  who  delivered  the  stronger  of  the  two  dissenting 
opinions.  Reverdy  Johnson,  the  distinguished  Maryland  law 
yer,  and  Henry  S.  Geyer,  Senator  from  Missouri,  represented 
the  other  side.  Johnson  volunteered  out  of  consideration  for 
the  court. 

Taking  the  view  of  the  law  as  announced  by  the  State 
supreme  court,  the  trial  Federal  court  held  that  upon  the 
merits  of  the  case  neither  Scott  nor  any  of  his  family  had 
become  entitled  to  the  status  of  a  freeman.  The  facts  of  the 
case  were  the  same  before  all  of  the  courts.1"  These  agreed 
facts,  being  those  which  went  to  the  Supreme  Court  of  the 
United  States  with  the  appeal  from  the  result  in  the  trial  Fed 
eral  court  are : 

Dr.  Emerson,  in  the  regular  service  of  the  United  States 
army,  purchased  Scott  in  Missouri,  where  the  latter  was  held 
in  slavery  under  laws  recognized  by  the  Constitution  of  the 
United  States  as  valid.  In  1834,  going  from  Missouri,  and 
under  army  orders,  Emerson  carried  Scott  to  the  military  post 
at  Rock  Island,  Illinois,  "and  held  him  there  as  a  slave  until 
the  month  of  April  or  May,  1836.''  Under  government  or 
ders  the  doctor  then  moved,  taking  Scott,  to  the  military  post 
at  Fort  Snelling,  "situated  on  the  west  bank  of  the  Mis 
souri  river,  in  the  Territory  known  as  Upper  Louisiana,  ac 
quired  by  the  United  States  from  France,  and  situated  north 
of  the  latitude  thirty-six  degrees  and  thirty  minutes  north, 
and  north  of  the  State  of  Missouri."  There  Dr.  Emerson 
held  Scott  in  slavery  until  1838,  when  he  removed  the  negro, 
his  wife  and  child  back  to  Missouri. 

In  1835  Major  Taliaferro,  also  an  army  officer,  owned  a 
negro  girl,  Harriet,  whom  he  carried  to  Fort  Snelling,  going 


Howard,   552. 


OF    THE    DRED    SCOTT    DECISION  3! 

there  in  discharge  of  army  duty.  At  Fort  Snelling  in  1836, 
the  major  sold  "Harriet  and  delivered  her  as  a  slave"17  to 
Dr.  Emerson.  There  she  was  held  in  slavery  by  the  doctor 
until  1838,  at  which  time  she  and  Scott  were  returned  to 
Missouri  with  the  Emersons. 

In  1836  Harriet  and  Dred,  with  the  consent  of  Dr. 
Emerson,  "who  then  claimed  to  be  their  master  and  owner, 
intermarried,  and  took  each  for  husband  and  wife."  Of  this 
marriage  there  were  two  children,  Eliza  and  Lizzie.  The 
former  was  "born  on  board  the  steamboat  Gypsie,  north  of 
the  north  line  of  the  State  of  Missouri,  and  upon  the  river 
Mississippi."  Lizzie  -was  born  at  Jefferson  Barracks  in  Mis 
souri. 

During  the  time  Dr.  Emerson  and  Major  Taliaferro  were 
thus  at  Rock  Island  and  Fort  Snelling  they  were  acting  under 
orders  from  the  officials  of  the  Federal  army;  they  had  not 
gone  either  to  Illinois  or  to  Fort  Snelling  in  what  was  at 
the  time  Wisconsin  for  the  purpose  of  remaining-  perma 
nently.  As  with  all  our  army  officers,  they  were  liable  to  be 
recalled  and  removed  at  any  moment ;  their  stay  w<as 
temporary. 

\Yhen  the  case  at  length,  March  6,  1857,  was  decided  by 
the  Supreme  Court  of  the  United  States,  the  result  was  taken 
to  be  a  great  victory  for  the  principles  of  the  Democratic  party, 
and  there  was  much  rejoicing  throughout  the  ranks,  espec 
ially  at  the  South.  Democrats  in  Congress  asked  for  the 
publication  of  several  thousand  copies  of  the  opinion,  which 
was  ordered  at  a  cost  to  the  government  of  $6,500.  The 
appropriation  for  this  expenditure  had  little  opposition,  though 
Republican  members  were  careful  to  explain  that  their  assent 
must  not  be  taken '  to  indicate  approval  of  the  court's  de- 


17Original    Record,    p.    10,    Clerk's    Office    U.    S.    Supreme    Court. 

At  the  time  Dr.  Emerson  was  on  duty  at  Fort  Snelling  quite  a  number  of  slaves 
of  both  sexes  were  held  there  by  post  officers'.  Taliaferro  had  several  he  had  inherited 
in  the  State  of  his  birth,  Harriet  being  one.  Holcombe,  (1908)  Minn,  in  Three 
Centuries,  v.  2,  66. 

18Cong.    Globe,    35    Cong.,    i    sess.,    1069-70;    Ib.    36    Cong,    i    sess.,    Appendix,    293. 


III. 

THE  OPINION   READ  BY  CHIEF  JUSTICE  TANEY 
THE  JUDICIAL  OPINION   OF   THE  COURT. 

When  an  action  is  brought  in  a  Federal  court,  not  usually 
required  in  a  State  court,  the  plaintiff's  writing  of  com 
plaint  must  set  out  a  ground  for  the  jurisdiction  of  the  court. 
In  the  Dred  Scott  Case  the  complaint  known  in  law  as  the 
declaration,  filed  by  Scott's  lawyer,  as  we  observed  in  the  pre 
ceding  chapter,  averred  the  plaintiff  Scott  to  be  a  citizen  of 
Missouri,  and  that  Sandford,  by  whose  authority  it  was  al 
leged  Scott  was  being  improperly  and  unlawfully  held  in 
slavery,  was  a  citizen  of  New  York.  Hence,  upon  this  state 
ment  intended  to  show  the  Federal  court  a  ground  of  juris 
diction,  it  appeared  that  the  suit  was  a  controversy  "between 
citizens  of  different  States."  This  statement,  if  true,  furnishes 
one  of  the  grounds  for  original  jurisdiction  by  a  Federal 
court  as  provided  by  section  two  of  article  three  of  the  Con 
stitution.  Unless  allegations  showing  jurisdiction  are  called 
in  question  by  special  plea  the  court,  unless  it  has  reason  to  do 
so  upon  its  own  motion,  accepts  the  statement  as  true,  and 
hears  the  case.  So  Sandford's  attorney  replied  to  this  affirma 
tion  of  citizenship  by  what  is  known  as  a  plea  in  abatement; 
that  is,  he  said  that  for  reasons  alleged  in  the  plea  Scott  was 
not  a  citizen  of  Missouri,  and  that  therefore  the  Federal  court 
had  no  jurisdiction  and  that  the  suit  should  stop.  The  circuit 
court  overruled  this  plea,  and  then  proceeded  to  hear  the 
case  on  its  merits. 

When  a  case  goes  up  to  a  higher  court  on  appeal,  as 
this  did  from  the  Federal  circuit  court  to  the  United  States 
Supreme  Court,  a  transcript  of  the  proceedings  in  the  trial 

32 


OF    THE    DRED    SCOTT    DECISION  33 

court  is  made,  and  this  record,  and  it  alone,  is  the  basis  of 
the  final  action  by  the  higher  court. 

Finding  this  plea  in  abatement  in  the  record,  to  which 
there  had  been  a  demurrer,  and  the  judgment  of  the  trial  court 
sustaining  the  demurrer  and  overruling  the  plea,  Chief  Jus 
tice  Taney's  opinion  held  that  these  were  properly  before  the 
Supreme  Court  for  review,  because  "a  writ  of  error  always 
brings  up  to  the  superior  court  the  whole  record  of  the  pro 
ceedings  below."1 

Overruling  the  judgment  of  the  trial  court  upon  its  find 
ing  upon  this  plea  and  its  admitted  facts,  the  opinion  of  the  f •; 
Supreme  Court  holds  that  the  trial  court  erred  in  exercising 
jurisdiction  further  than  to  pass  upon  the  questions  raised 
by  this  plea,  because  "persons  whose  ancestors  were  negroes 
of  the  African  race  and  imported  into  this  country  and  sold 
and  held  as  slaves,"  were  not  citizens  in  the  sense  as  meant 
by  the  Constitution,  just  as  Indians  were,  admittedly,  not  com 
prehended  by  the  term2  and,  hence,  as  citizens  such  persons 
could  not  sue  a  citizen  of  another  State  in  a  Federal  court, 
relying  upon  diverse  citizenship  as  a  sole  ground  of  juris 
diction. 

Then,  passing  on  to  the  rest  of  the  record,  the  opinion 
discusses  and  decides  the  grounds  upon  which  Scott  alleged 
that  his  once  lawful  slavery  had  been  destroyed.  Thus  it 
came  about  that  the  opinion  held  that  the  Missouri  Compro 
mise,  that  act  of  Congress  which  declared  involuntary  servi-  ^y.  r 
tude  within  the  Louisiana  Purchase  and  outside  of, Missouri 
and  north  of  thirty-six  degrees  thirty  minutes,  illegal,  to  have 
been  contrary  to  the  Constitution,  and  so  of  no  validity. 
Hence,  Scott's  stay  in  Wisconsin,3  within  the  Territory  of 
this  law  and  while  it  was  yet  unrepealed  and  of  full  apparent 
force,  could  not  operate  to  destroy  the  previously  existing 
slave  status. 


*i9   Howard,   403. 

2Ib.  404. 

3Then   a  Territory  which  is  now  a  part  of  Minnesota. 


34  LEGAL  AND  HISTORICAL  STATUS 

Now  it  is  claimed  that  no  judicial  majority  of  the  Su 
preme  Court  of  the  United  States  concurred  with  the  Chief 
Justice  in  his  treatment  of  the  question  raised  by  the  plea  in 
abatement.  Others  admit  that  a  majority  did  treat  and  dis 
pose  of  the  plea  in  abatement  in  concurrence  with  the  Chief 
Justice,  but  stoutly  insist  that  there  was  no  judicial  authority 
in  concurrence  with  him  in  the  decision  that  the  Missouri 
Compromise  law  was  unconstitutional.  While  still  other  emi 
nent  writers  (such  as  Dr.  Thayer  of  Harvard  University) 
insist  that  the  opinion  as  read  by  the  Chief  Justice  was  his 
individual  opinion,  and  that  there  was  in  no  sense  an  opinion 
and  decision  of  the  court.4 

\Ye  must  remember  that  where  any  court  is  composed  of 
more  than  two  judges,  a  majority  agreement  is  always,  without 
any  question  in  the  United  States,  accepted  and  respected  as 
the  opinion  and  decision  of  the  court.  \Yere  it  otherwise 
we  should  very  seldom  find  such  a  court  reaching  a  conclusion 
or  a  determination  of  the  questions  in  any  given  case  before 
it.  In  the  Dred  Scott  Case  each  member  of  the  court  on 
opinion  day  read  a  written  statement;  and  Chief  Justice  Taney 
claimed  that  his  paper  was  the  judicial  opinion  and  decision 
of  the  court.  That  is,  he  claimed  that  five  or  more  of  the 
judges  had  concurred  in  his  opinion  and  decision. 

It  will  be  helpful  to  remember  as  we  investigate  these 
disputed  questions  that  a  judicial  decision  may  be  said  to  be 
composed  of  three  parts :  ( i )  The  reasoning,  argumentative 
illustrations,  authorities,  etc.  (2)  The  opinion;  that  is,  the 
conclusion  that  asserted  premises  are  true.  (3)  The  judg 
ment  or  decree. 

;;.-Mr.  B.  R.  Curtis,  a  son  of  Justice  Curtis,  in  collabora 
tion  with  his  uncle,  Mr.  G.  T.  Curtis,  who  was  of  counsel  in 
arguing  this  case  before  the  Supreme  Court,  in  their  life 
of  Judge  Curtis  have  given  plausability  to  a  widespread  belief 
that  the  question  of  citizenship  as  it  was  presented  by  the 
facts  contained  in  the  plea  in  abatement,  was  the  only  point 


4Thayer,    Cases   on   Constitutional   Law,   493,   note    i. 


OF    THE    DRED    SCOTT    DECISION  35 

which  had  a  judicial  majority,  and  so  the  only  point  decided. 
They  say  that  "there  never  was  a  judicial  majority,  speaking 
correctly,  formed  upon  the  question  of  the  power  of  Congress 
to  prohibit  slavery  in  a  Territory,  and  consequently  a  claim 
that  a  'decision'  adverse  to  the  power  had  been  made  by  the 
Supreme  Court  was  erroneous."5  And  on  page  207  of  the 
same  work,  speaking  of  the  opinion  as  read  by  the  Chief  Jus 
tice,  it  is  said  that  "no  other  judge,  except  Mr.  Justice  Wayne, 
concurred  in  all  its  points,  reasonings  and  conclusions." 

The  high  source  from  which  they  emanate  has  given  these 
claims  much  force  with  many  historians  and  encyclopedists. 
But  the  questions  thus  raised  are  determined  by  the  record ;  and 
the  record,  upon  the  point  as  to  which  it  is  challenged,  is  so 
simple  that  no  legal  ability  is  needed  to  determine  what  it 
proves.  All  that  is  necessary  is  to  turn  to  the  volume  contain 
ing  the  official  report  of  the  case  and  there  read  what  the  re 
spective  members  of  the  court  have  to  say. 

The  statements  of  Mr.  Justice  Daniel,  which  are  unques 
tioned  by  any  member  of  the  court,  amply  refute  the  claim  of 
the  Curtis  family  concerning  the  decision  of  the  court  in 
volving  the  validity  of  the  Missouri  Compromise.  Speaking 
with  reference  to  the  constitutionality  of  the  Missouri  Com- 
•  promise,  and  as  to  what  effect  should  be  given  in  Missouri  to 
the  law  of  Illinois,  he  said  that  "with  respect  to  them  the 
opinions  of  a  majority  of  the  court,  including  my  own,  are 
perfectly  coincident:"  He  is  overwhelmingly  corroborated  by 
the  facts  as  they  appear  on  the  record ;  and  that  we  may  see 
this,  finding  for  ourselves  that  he  could  not  have  been  mis 
taken,  let  us  first  see  the  history  of  the  case  while  actually  be 
fore  the  court,  and,  after  that,  go  to  the  record  and  there  see 
what  the  respective  judges  say  upon  each  question,  and  thus 
find  their  attitude  toward  the  opinion  as  read  by  the  Chief 
Justice. 

Mr.  Justice  Curtis  was  succeeded  upon  the  bench  in  1858. 
He  retired  to  the  State  of  Rhode  Island,  and  at  Newport, 


5Benj.    R.   Curtis,   Jr.,  The  Life  of  B.   R.   Curtis,  v.    i,  p.    195. 


36  LEGAL  AND  HISTORICAL  STATUS 

September  15,  1874,  died.  At  the  next  meeting  of  the 
Supreme  Court  appropriate  and  touching  services  were  held 
in  honor  of  his  memory.  Hon.  J.  A.  Campbell,  who  was  the 
Mr.  Justice  Campbell  when  the  Dred  Scott  Case  was  before 
the  court,  had  retired  from  the  bench  and  was  then  at  the 
bar.  In  the  course  of  his  address  on  that  occasion,  referring 
to  the  Dred  Scott  Case,  he  said :  "There  was  nothing  in  the 
deliberation  of  that  case  to  distinguish  it  from  any  other." 

Hence,  each  member  of  that  court  knew  whether  his  as 
sent  to  the  opinion  of  the  Chief  Justice  were  needed  to  make 
it  the  official  and  proper  court  document,  the  "judicial  opinion 
and  decree  of  the  court."  Now,  what  Judge  Campbell  said, 
speaking  from  memory  after  twenty  years,  concerning  the 
judicial  opinion  of  the  court  as  to  the  treatment  of  the  plea- 
in  abatement,  has  been  relied  upon  strongly  by  those  who 
claim  that  the  court  did  not  furnish  a  majority  who  agree 
that  the  question  "which  presented  the  capacity  of  a  person 
of  African  descent  to  be  a  citizen,"  was  open  for  the  decision 
of  the  Supreme  Court.  That  is,  the  question  raised  by  the 
plea  in  abatement.  Judge  Campbell  says  that  he,  Justices  Mc 
Lean,  Catron,  Grier  and  Nelson,  upon  the  reargument  of 
the  case  became  a  majority  which  held  that  the  plea  in  abate 
ment  was  not  open.  Mr.  Justice  Campbell  adds :  "Each  of 
these  judges  has  recorded  in  his  opinion  that  there  was  noth 
ing  in  the  plea  in  abatement  before  the  court  for  review,"6 

So  I  shall  make  an  analysis  of  the  record  which  I  shall 
submit  proves  that  those  who  agree  with  the  position  taken 
by  the  Curtis  family  and  those  who  agree  with  what  Air. 
Justice  Campbell  says,  are  all  mistaken  in  their  respective 
positions.  The  record  does  not  sustain  Judge  Campbell,  thus 
showing  that  at  his  advanced  age  his  memory  must  have  been 
somewhat  at  fault. 

I  am  persuaded  that  one  difficulty  to  see  the  majority 
agreement  has  been  that  some  of  those  who  agree  or  concur 
with  the  Chief  Justice  upon  the  grounds  of  one  question  differ 


"Tyler's   Memoir  of   Chief  Justice  Taney,   382-5. 


OF    THE    DRED    SCOTT    DECISION  37 

from  him  upon  the  reasoning  of  another,  while,  those  who  dis 
sented  from  him  upon  the  first  agreed  with  him  upon  the 
second,  and  so  on  throughout,  with  the  exception  of  Justices 
Wayne  and  Daniel  whose  assent  and  concurrence  met  his 
opinion  upon  each  question,  and  the  reasoning  and  conclusion 
thereupon.  These  together  with  the  Chief  Justice  constitute 
three,  and  so  we  need  only  two  more  in  concurrence  with  them 
upon  the  opinion  as  read  by  the  Chief  Justice  to  constitute  the 
judicial  power  of  the  court. 

Then,  did  a  majority  of  the  judges  accept  the  opinion— 
and  with  it  the  judgment — as  read  by  Chief  Justice  Taney, 
as  that  of  the  court? 

That  I  am  correct  as  to  Judges  Wayne  and  Daniel,  let 
me  quote  them. 

Said  Mr.  Justice  Wayne :  "Concurring  as  I  do  entirely 
in  the  opinion  of  the  court,  as  it  has  been  written  and  read 
by  the  Chief  Justice — without  any  qualification  of  its  reason 
ing  or  conclusions — I  shall  neither  read  nor  file  an  opinion 
of  my  own  in  this  case,  which  I  prepared  when  I  supposed  it 
might  be  necessary  and  proper  for  me  to  do  so." 

"The  opinion  of  the  court,"  he  continues,  "meets  fully 
and  decides  every  point  which  was  made  in  the  argument  of 
the  case  by  the  counsel  on  either  side  of  it.  Nothing  belonging 
to  the  case  has  been  left  undecided,  nor  has  any  point  been 
discussed  and  decided  which  was  not  called  for  by  the  record, 
or  which  was  not  necessary  for  the  judicial  disposition  of  it, 
in  the  way  that  it  has  been  done,  by  more  than  a  majority  of 
the  court."7 

Judge  Daniel,  after  pointing  out,  in  harmony  with  the 
Chief  Justice  that  "the  African  race  have  never  been  acknowl 
edged  as  belonging  to  the  family  of  nations,"  said : 

"In  the  plea  in  abatement,  the  character  or  capacity  of  citi 
zen  on  the  part  of  the  plaintiff  is  denied,  and  the  causes  which 
show  the  absense  of  that  character  or  capacity  are  set  forth  by 
averment.  The  verity  of  these  causes,  according  to  the  set- 


19    Howard,   454. 


38  LEGAL  AND  HISTORICAL  STATUS 

tied  rules  of  pleading,  being  admitted  by  the  demurrer,  it  only 
remained  for  the  circuit  court  to  decide  upon  their  legal  suffi 
ciency  to  abate  the  plaintiff's  action.  And  now  it  becomes  the 
province  of  this  court  to  determine  whether  the  plaintiff  below 
(and  plaintiff  in  error  here),  admitted  to  be  a  negro  of  African 
descent,  whose  ancestors  were  of  pure  African  blood,  and  who 
were  brought  into  this  country  and  sold  as  negro  slaves — 
such  being  his  status,  and  such  the  circumstances  surrounding 
his  position — whether  he  can,  by  correct  legal  induction  from 
that  status  and  those  circumstances,  be  clothed  with  the  char 
acter  and  capacities  of  a  citizen  of  the  State  of  Missouri  ? 

'  .  .  .  The  correct  conclusion  upon  the  question  here  con 
sidered  would  seem  to  be  these : 

"That  in  the  establishment  of  the  several  communities  now 
the  States  of  this  Union,  and  in  the  formation  of  the  Federal 
Government,  the  African  was  not  deemed  politically  a  per 
son.  He  was  regarded  and  owned  in  every  State  (in  the 
Union  as  property  merely,  and  as  such  was  not  and  could 
not  be  a  party  or  an  actor,  much  less  a  peer  in  any  compact 
or  form  of  government  established  by  the  States  or  the  United- 
States.  .  .  .  That  so  far  as  rights  and  immunities  pertaining 
to  citizens  have  been  defined  and  secured  by  the  Constitution 
and  laws  of  the  United  States,  the  African  race  is  not  and 
never  was  recognized  either  by  the  language  or  purposes'  of 
the  former;  and  it  has  been  expressly  excluded  by  every  act 
of  Congress  providing  for  the  creation  of  citizens  by 
naturalisation,  these  laws,  as  has  already  been  remarked,  be 
ing  restricted  to  free  i^'liite  aliens  exclusively."8 

Had  he  repeated  the  exact  words  of  the  Chief  Justice  he 
could  not  more  forcibly  have  expressed  his  concurrence  in  the 
opinion  that  the  plea,  the  demurrer,  and  the  facts  thus  present 
ed  and  admitted  were  before  the  Supreme  Court,  upon  consid 
eration  whereof  that  the  circuit  court  had  improperly  exercised 
jurisdiction. 


8Ib'.    475,    481-2. 


OF    THE    DRED    SCOTT    DECISION  39 

Did  Daniel  concur  with  reference  to  the  other  decisions 
and  the  judgment?  His  language  is  unmistakable: 

"According  to  the  view  taken  of  the  law,  as  applicable  to 
the  demurrer  to  the  plea  in  abatement  in  this  case,  the  ques 
tions  subsequently  raised  upon  the  several  pleas  in  bar  [that 
is,  that  Scott  Avas  free  because  of  the  lawrs  respectively  in  the 
Territory  and  in  Illinois]  might  be  passed  by,  as  requiring 
neither  a  particluar  examination,  nor  an  adjudication  upon 
them.  But  as  these  questions  are  intrinsically  of  primary 
interest  and  magnitude,  and  have  been  elaborately  discussed 
in  argument,  and  as  with  respect  to  than  the  opinions  of  a 
majority  of  the  court,  including  my  own,  arc  perfectly  coin 
cident,  to  me  it  seems  proper  that  they  should  here  be  fully 
considered,  and,  so  far  as  it  is  practicable  for  this  court  to 
accomplish  such  an  end,  finally  put  to  rest."9 

Our  concern  at  this  point  is  to  see  whether  there  was  a 
majority  concurrence;  we  shall  see  further  on  whether  it  was 
an  error, to  decide  the  other  questions  after  this  disposition  of 
the  plea  in  abatement. 

Now,  upon  the  question  whether  "the  facts  relied  upon 
by  the  plaintiff  entitled  him  to  his  freedom/'10  the  opinion 
as  pronounced  by  the  Chief  Justice  was :  (i)  That  "the  act 
of  Congress  which  prohibited  a  citizen  from  holding  and  own 
ing  property  of  this  kind  in  the  Territory  of  the  United  States 
north  of  the  line  mentioned,  is  not  warranted  by  the  Consti 
tution,  and  is  therefore  void;  and  that  neither  Dred  Scott 
himself,  nor  any  of  his  family,  were  made  free  by  being  car 
ried  there  by  the  owner,  with  the  intention  of  becoming  a  per 
manent  resident."  (2)  uAs  Scott  was  a  slave  when  taken 
into  the  State  of  Illinois  by  his  owner,  and  was  there  held  as 
such,  and  brought  back  in  that  character,  his  status,  as  free 
or  slave,  depended  on  the  laws  of  Missouri,  and  not  of  Illi 
nois;"  and  that  upon  "a  careful  examination  of  all  the  cases 
decided  in  the  State  courts  of  Missouri,  referred  to,  it  is  now 


»  Ib.   482. 
111  Ib.  43"- 


4O  LEGAL  AND  HISTORICAL  STATUS 

firmly  settled  by  the  decisions  of  the  highest  court  in  the 
State,  that  Scott  and  his  family  upon  their  return  were  not 
free,  but  were,  by  the  laws  of  Missouri,  the  property  of  the 
defendent ;  and  that  the  circuit  court  of  the  United  States  had 
no  jurisdiction,  when,  by  the  laws  of  the  State,  the  plaintiff 
was  a  slave,  and  not  a  citizen. "1!L 

And  the  judgment:  "Upon  the  whole,  it  is  the  judgment 
of  this  court,  that  it  appears  by  the  record  before  us  that 
the  plaintiff  in  error  is  not  a  citizen  of  Missouri,  in  the  sense 
in  which  that  word  is  used  in  the  constitution;  and  that  the 
circuit  court  of  the  United  States,  for  that  reason,  had  no 
jurisdiction  in  the  case  and  could  give  no  judgment  in  it. 
Its  judgment  for  the  defendant  must,  consequently,  be  re 
versed,  and  a  mandate  issued,  directing  the  suit  to  be  dismissed 
for  want  of  jurisdiction."12 

Now,  compare  the  above  words  with  those  of  Mr.  Justice 
Daniel  in  his  plain  arguments  on  pages  468  to  492,  wherein 
he  maintains  that  the  question  belonged  to  Missouri  rather 
than  Illinois,  and  that  Congress  had  no  power  to  enact  the 
Missouri  Compromise;  and  with  these  read  his  conclusion  on 
the  latter  page : 

"In  conclusion,  my  Opinion  is,  that  the  decision  of  the 
circuit  court,  upon  the  law  arising  upon  the  several  pleas  in 
bar,  is  correct,  but  that  it  is  erroneous  in  having  sustained 
the  demurrer  to  the  plea  in  abatement  of  the  jurisdiction; 
that  for  this  error  the  decision  of  the  circuit  court  should 
be  reversed,  and  the  cause  remanded  to  that  court,  with  in 
structions  to  abate  the  action,  for  the  reason  set  forth  and 
pleaded  in  the  plea  in  abatement." 

Hence,  we  have  two  judges  of  that  court  who  concur 
with  the  opinion  and  judgment  of  the  Chief  Justice  without 
reservation  as  to  either  question.  We  must  now  look  for  the 
necessary  majority  agreement  of  five  or  more  justices  upon 
the  questions  taken  separately,  remembering  that  each  gets 


ulb.   452-3. 
"Ib.   454- 


OF    THE    DRED    SCOTT    DECISION  4! 

its  validity  from  its  own  support,  and  that  where  each  had 
a  majority  assent,  though  as  compared  to  each  other  that 
majority  may  differ  somewhat  in  its  individual  makeup,  the 
whole  is  as  valid  as  though  the  same  judges  had  agreed  upon 
each  separate  branch. 

Mr.  Justice  Nelson  discussed  very  fully  and  very  con 
vincingly  both  branches  of  the  second  question  as  given  above ; 
upon  the  second  he  was  more  elaborate  than  the  Chief  Justice, 
but  upon  the  questions  which  he  discussed  he  concurred  fully 
and  entirely  with  the  Chief  Justice.  Notice  his  language: 
"Our  conclusion,  therefore,  is,  upon  this  branch  of  the  case, 
that  the  question  involved  is  one  depending  solely  upon  the 
laws  of  Missouri,  and  that  the  Federal  court  sitting  in  the 
State,  and  trying  the  case  before  us,  was  bound  to  follow  it." 
And  on  the  next  branch  of  the  same  question :"  .  .  .  turning 
to  the  decisions  in  the  courts  of  Missouri,  it  will  be  found  that 
there  is  no  discrepancy  between  the  earlier  and  the  present 
cases  upon  this  subject.  .  .  .  Upon  the  whole,  it  must  be  ad 
mitted  that  the  current  of  authority,  both  in  England  and  in 
this  country,  is  in  accordance  with  the  law  as  declared  by 
the  courts  of  Missouri  in  the  case  before  us,  and  we  think 
the  court  below  [the  Federal  circuit  court]  was  not  only 
right,  but  bound  to  follow  it."13 

Mr.  Justice  Grier  said:  "I  concur  in  the  opinion  delivered 
by  Mr.  Justice  Nelson  on  the  questions  discussed  by  him," 
and  as  the  questions  which  Mr.  Justice  Nelson  discussed  were 
coincident  with  the  opinion  upon  those  points  as  read  by  the 
Chief  Justice,  he  necessarily  concurred  thus  far  with  the 
Chief  Justice;  and  he  meant  us  to  so  understand,  since  upon 
those  points  the  Chief  Justice  had  announced  a  conclusion  after 
a  brief  discussion.  It  is  very  noticeable  that  Judge  Grier  takes 
care  to  say  that  he  agrees  with  Judge  Nelson's  discussion,  that 
it  might  be  fully  observed  that  he  did  not  agree  with  what 
Judge  Nelson  regarded  as  a  proper  judgment  resulting  from 
his  opinion;  Judge  Nelson  held  that  the  judgment  of  the  cir- 


13Ib.    465    and   463. 


42  LEGAL  AND  HISTORICAL  STATUS 

cuit  court  should  be  affirmed,  since  it  adjudged  Scott,  under  the 
Missouri   law,   a   slave. 

So  upon  the  second  question  as  decided  in  the  opinion 
as  read  by  the  Chief  Justice,  to  wit :  that  Scott's  status  de 
pended  upon  the  laws  of  Missouri,  and  not  of  Illinois,  and 
that  the  highest  court  in  Missouri  had  correctly  and  firmly 
settled  that  after  their  return  to  Missouri  Scott  and  his  fami 
ly  were  not  free,  but  were,  by  the  laws  of  Missouri,  the 
property  of  the  defendant — we  have  in  concurrence  Chief 
Justice  Taney,  Justices  \Yayne,  Daniel,  Nelson  and  Crier,  a 
numerical  majority  whose  opinion  thus  became  a  judicial 
decision. 

Last,  though  first  in  chronological  order,  was  the  plea 
in  abatement,  with  its  demurrer  by  Scott,  which  simply  means 
that  the  statements  were  admitted  facts,  raising  the  question, 
"whether  any  person  of  African  descent,  whose  ancestors  were 
sold  as  slaves  in  the  United  States,  can  be  a  citizen  of  the 
United  States"  or  of  a  State  in  the  sense  in  which  the  Con 
stitution  had  used  the  word,  before  the  court?  That  it  was 
and  should  be  considered,  we  have  Chief  Justice  Taney,  Jus 
tices  \Yayne,  Daniel,  Curtis,14  Grier  and  Nelson,  and  in 
part  Campbell.  On  page  518  the  last  named  says:  "And  so 
far  as  the  argument  of  the  Chief  Justice  upon  the  plea  in  abate 
ment  has  a  reference  to  the  plaintiff  or  his  family,  in  any  of 
the  conditions  or  circumstances  of  their  lives,  as  presented  in 
the  evidence,  I  concur  (also)  in  that  portion  of  his  opinion." 
So  he  did  concur  that  the  plea  in  abatement  in  some  sense,  at 
least,  was  before  the  court ;  and  he  did  concur  fully  as  to  the 
opinion  concerning  the  citizenship  which  the  facts  set  out  in 
the  plea  denied. 

Justice  Grier  was  willing  that  the  judgment  of  the  circuit 
court  be  either  affirmed  or  reversed;  but  in  his  assent  that 
the  opinion  and  judgment  as  rendered  by  the  Chief  Justice 
was  the  opinion  and  judgment  of  the  court,  he  agreed  that  it 
might  be  reversed ;  and  also  thus  concurred  with  the  opinion 


14  Ib.  565- 


OF    THE    DRED    SCOTT    DECISION  43 

as  to  the  treatment  of  the  plea  in  abatement.  His  language 
is :  "I  also  concur  with  the  opinion  of  the  court  as  delivered 
by  the  Chief  Justice,  that  the  act  of  Congress  of  March  6th, 
1820,  is  unconstitutional  and  void;  and  that,  assuming  the 
facts  as  stated  in  the  opinion,  the  plaintiff  cannot  sue  as  a 
citizen  of  Missouri  in  the  courts  of  the  United  States.  But 
that  the  record  shows  a  prima  facie  case  of  jurisdiction  requir 
ing  the  court  to  decide  all  the  questions  properly  arising  in 
it  [the  very  first  of  which  was  the  plea  in  abatement]  ;  and 
as  the  decision  of  the  pleas  in  bar  shows  that  the  plaintiff  is  a 
slave,  and  therefore  not  entitled  to  sue  in  a  court  of  the  United 
States,  the  form  of  the  judgment  is  of  little  importance;  for, 
whether  the  judgment  be  affirmed  or  dismissed  for  want  of 
jurisdiction,  it  is  justified  by  the  decision  of  the  court,  and  is 
the  same  in  effect  between  the  parties  to  the  suit."15 

Notice  his  words:  "Justified  by  the  decision  of  the  court/' 
To  what  did  he  refer?  Plainly,  to  "the  opinion  of  the  court 
as  delivered  by  the  Chief  Justice,"  and  to  the  "facts  as  stated 
in  the  opinion."  No  language  could  be  plainer  than  that  he 
recognized  the  opinion  and  judgment  as  announced  by  the 
Chief  Justice  as  the  opinion  and  judgment  of  the  court.  He 
does  not  dissent  from  it;  and,  even  were  his  language  less 
clear  and  undoubted,  sitting  in  the  case  and  participating 
judicially,  his  concurrence  with  what  he  calls  the  "opinion 
of  the  court''  would  be  implied.  So  both  expressly  and  tacitly 
he  concurred  with  the  Chief  Justice. 

I  am  also  firmly  convinced  that  Judge  Nelson  should 
likewise  be  counted  with  the  majority  in  the  treatment  of  the 
plea  in  abatement.  \Yhile  he  is  not  needed  to  help  to  a  judi 
cial  majority  upon  that  point,  yet  I  fully  believe  he  meant  to 
concur  with  the  Chief  Justice.  I  am  of  opinion  that  a  careful 
reading,  in  the  light  of  the  facts,  of  his  opinion  will  bear  out 
this  claim.  It  is  true  that  he  said  in  the  outset  of  his  state 
ment  that  it  would  not  be  necessary  to  pass  upon  the  question 
of  citizenship  raised  by  the  plea  in  abatement.  But  it  is 

irlb.    469. 


44  LEGAL  AND  HISTORICAL  STATUS 

agreed  by  all  who  know  the  facts'  that  the  paper  which  he  filed 
was  written  after  the  first  argument  and  at  a  time  when  it 
was  understood  that  he  was  writing  the  opinion  of  the  court. 
After  the  second  argument  all  the  judges  understood  that  the 
Chief  Justice  would  write  for  the  court  its  opinion;  this 
document  had  been  read  to  the  judges  before  it  was  read  from 
the  bench ;  each  knew  its  contents,  and,  without  rewriting  in 
full,  Judge  Nelson  changed  some  of  the  wording  of  what 
he  had  long  before  the  final  decision  prepared.  All  that  he 
says  is  that  "it  will  not  be  necessary  to  pass  upon  the  ques 
tion."  He  does  not  say  that  to  pass  upon  it  would  be  im 
proper  ;  and,  in  fact,  what  he  does  say  clearly  leaves  us  to 
understand  that  he  does  believe  that  the  plea  in  abatement 
is  properly  before  the  court;  but  that  the  same  question  is 
raised  by  the  pleas  which  came  after  it ;  and  that  upon  their 
decision  the  judgment  must  be  in  effect  the  same  as  upon  the 
plea  in  abatement.  He  says  that  in  Federal  courts,  "if  the 
facts  appearing  on  the  record  show  that  the  circuit  court  had 
no  jurisdiction,  its  judgment  will  be  reversed  in  the  appellate 
court  for  that  cause,  and  the  case  remanded  with  directions  to 
be  dismissed."16  This  .was  exactly  the  doctrine  upon  which 
the  Chief  Justice  proceeded.17  We  can  justly  say  of  Judge 
Nelson  in  this  respect  that,  while  he  does  not,  in  his  remarks, 
take  that  plea  into  account,  yet  he  nowhere  says  that  he  is  un 
willing  that  the  Chief  Justice  do  so  on  behalf  of  a  majority 
of  the  court;  and  a  judge  who  sits  in  a  case,  I  may  repeat, 
and  who  participates,  always  concurs  with  what  is  handed  down 
as  the  opinion  of  the  court,  unless  he  plainly  gives  us  to  un 
derstand  otherwise. 

Hence,  on  all  the  points  decided  in  the  opinion  as  read  by 
the  Chief  Justice  WQ  have  a  concurrence  of  a  judicial  majority; 
and  as  to  the  judgment  which  was  based  upon  that  opinion 
as  "a  whole,"  we  have  the  Chief  Justice,  and  Justices  Wayne, 


16Ib.    458. 
17Ib.   401. 


OF    THE    DEED    SCOTT    DECISION  45 

Daniel,  Grier  and  Campbell — a  judicial  majority, — and  hence 
the  judgment  of  the  court. 

I  have  de.emed  it  important  as  well  as  interesting  thus  to 
show  analytically  by  whom  and  how  each  point  or  question  de 
cided  in  the  opinion  handed  down  by  the  Chief  Justice  became 
the  official,  judicial  action  of  the  Supreme  Court  of  the  United 
States.  But  aside  from,  or  perhaps  cumulative  to,  this,  there 
is  what  I  regard  as  absolutely  irrefutable  evidence  to  support 
my  conclusions.  That  we  may  see  its  force  the  more  clearly, 
let  me  quote  what  Judge  Campbell  tells  us  as  to  the  method  used 
by  the  Supreme  Court  in  reaching  a  conclusion  upon  any 
case.  Being  off  the  bench  and  at  the  bar,  as  will  be  remem 
bered,  in  his  memorial  speech  before  the  Supreme  Court  in 
honor  of  Judge  Curtis,  among  other  things  he  said  : 

"The  duties  of  the  justices  of  the  Supreme  Court  consist 
in  the  hearing  of  cases ;  the  preparations  for  the  consul 
tations ;  the  consultations  in  the  conference  of  the  judges;  the 
decision  of  the  cause  there,  and  the  preparation  of  the  opinion 
and  the  judgment  of  the  court.  Their  most  arduous  and  re 
sponsible  duty  is  in  the  conference. 

"...  The  Chief  Justke  presided  [speaking  of  the  pro 
cedure  when  the  Dred  Scott  Case  was  before  the  court],  the 
deliberations  were  usually  frank  and  candid.  .  .  .  There  was 
nothing  of  cabal,  combination,  or  exorbitant  desire  to  carry 
questions  or  cases.  Their  aims  were  honorable  and  all  the 
arts  employed  to  attain  them  were  manly  arts.  The  venerable 
age  of  the  Chief  Justice,  his  gentleness,  refinement,  and 
feminine  sense  of  propriety,  were  felt  and  realized  in  the 
privacy  and  confidence  of  these  consultations.  None  felt  them 
more,  none  has  described  them  so  well  as  Justice  Curtis  has 
done  in  his  graceful  tribute  to  our  illustrious  Chief  Justice 
since  his  death,  in  the  circuit  court  of  the  United  States,  in 
Boston, 

"In  these  conferences,  the  Chief  Justice  usually  called 
the  case.  He  stated  the  pleadings  and  facts  that  they  pre 
sented,  the  arguments  and  his  conclusions  in  regard  to 


46  LEGAL  AND  HISTORICAL  STATUS 

them,  and  invited  discussion.  The  discussion  was  free  and 
open  among  the  justices  until  all  were  satisfied. 

''The  question  was  put,  whether  the  judgment  or  decree 
should  be  reversed,  and  each  justice,  according  to  his  pre 
cedence,  commencing  with  the  junior  judge,  was  required  to 
give  his  judgment  and  his  reasons  for  his  conclusion.  The 
concurring  opinions  of  the  majority  decided  the  case  and 
signified  the  matter  of  the  opinion  to  be  given.  The  Chief 
Justice  designated  the  judge  to  prepare  it,"  or  reserved  that 
task  for  himself,  or  took  it  sometimes  when  urged  by  the 
justices.18 

Within  a  few  sentences  from  this  description,  Judge 
Campbell  tells  us,  and  there  is  nothing  to  contradict  him,  that 
there  was  nothing  in  the  treatment  of  the  Dred  Scott  Case  to 
distinguish  it  from  any  other ;  it  was  taken  up  by  the  routine 
method  and  fully  and  quietly  discussed,  just  as  all  other  cases. 
So  that  each  judge  had  ample  opportunity  to  know  exactly 
what  was  being  done.  This  is  the  more  clearly  seen  when  we 
remember  that  it  had  been  several  times  discussed  in  confer 
ence  ;  it  had  been  twice  argued  at  bar,  and  had  been  pending 
in  the  court  for  nearly  two  years. 

Now*  in  addition  to  the  specific  statements  of  the  justices, 
the  Chief  Justice  read  his  paper  as  the  opinion  and  decision 
of  the  court.  At  no  place  in  any  of  its  pages  does  it  purport 
to  be  his  individual  opinion.  That  it  was  being  announced  as 
the  court's  opinion,  was  understood  by  the  bench  and  officers 
of  the  court,  and  by  all  present.19  The  official  reporj^r,  the 
sworn  officer  of  the  court,  begins  his  report  of  that  document 
by  saying,  "Mr.  Chief  Justice  Taney  delivered  the  opinion  of 
the  court."  The  language  of  the  Chief  Justice  is  that  always 
used  by  the  judge  who  is  formulating  for  the  majority  its 
opinion  and  judgment;  for  instance:  "We  think  they  are  be 
fore  us;"  "we  proceed  to  examine;"  "the  court  think  the  af 
firmative  of  these  propositions  cannot  be  maintained ;"  "In 


18  See   20   Wallace,   x. 

18  Boston  Herald,  March  7,   1857. 


OF    THE    DRED    SCOTT    DECISION  47 

the  opinion  of  the  court,  the  legislation  and  histories  of  the 
times,"  £c;  "And  upon  a  full  and  careful  consideration  of  the 
subject,  THE  COURT  IS  OF  OPINION,  that  upon  the  facts 
stated  in  the  plea  in  abatement,  Dred  Scott  was  not  a  citizen 
of  [Missouri  within  the  meaning  of  the  Constitution  of  the 
United  States,  and  not  entitled  as  such  to  sue  in  its  courts; 
and,  consequently,  that  the  circuit  court  had  no  jurisdiction 
of  the  case,  and  that  the  judgment  on  the  plea  in  abatement 
is  erroneous;"  "in  the  case  before  us  WE  HAVE  already 
decided  that  the  circuit  court  erred  in  deciding  that  it  had 
jurisdiction  upon  the  facts  admitted  in  the  pleadings;"  "upon 
these  considerations,  IT  IS  THE  OPINION  OF  THE 
COURT  that  the  act  of  Congress  which  prohibited  a  citizen 
from  holding  and  owning  property  of  this  kind  in  the  ter 
ritory  of  the  United  States  north  of  the  line  therein  men 
tioned,  is  riot  warranted  by  the  Constitution,  and  is  therefore 
void."  "Upon  the  whole,  therefore,  IT  IS  THE  JUDGMENT 
OF  THIS  COURT,  that  it  appears  by  the  record  before  us 
that  the  plaintiff  in  error  is  not  a  citizen  of  Missouri,  in  the 
sense  in  which  that  word  is  used  in  the  Constitution,  and  that 
the  circuit  court  of  the  United  States,  for  that  reason,  had  no 
jurisdiction  in  the  case,  and  could  give  no  judgment  in  it. 
Its  judgment  for  the  defendant  must,  consequently,  be  reversed, 
and  a  mandate  issued,  directing  the  suit  to  be  dismissed  for 
want  of  jurisdiction." 

After  being  told  in  conference  what  the  Chief  Justice  was 
doing,  and  after  hearing  him  read  this  opinion  and  decree  from 
the  bench,  does  anybody  suppose  for  a  moment  that  an  honest 
court,  that  intelligent  sworn  judges,  would  have  stultified 
themselves,  would  have  perjured  themselves,  by  allowing  one 
of  their  number  to  come  before  the  world  heralding  that  to' 
be  their  opinion  which  was  not?  All  the  members  of  the 
court,  including  Justice  Curtis,  ascribe  to  the  Chief  Justice 
the  most  scrupulous  honesty,  as  well  as  the  most  exacting 
business  methods  in  his  judicial  work.  Benj.  R.  Curtis  him 
self  pronounced  the  Chief  Justice  "a  man  of  incorruptible  in- 


48  LEGAL  AND  HISTORICAL  STATUS 

tegrity."20  The  Chief  Justice  used  no  loose  or  uncertain 
language.  No  honest  and  no  exact  man  would  have  come  be 
fore  the  world  with  what  he  claimed  to  be  the  concurrent 
opinions  and  judgment  of  the  majority  of  the  court  over 
which  he  presided  with  such  brilliant  distinction  for  so  many 
years — u'-itJi  other  than  urhat  he  claimed  to  bring.  Then,  look 
at  the  language  of  the  other  members  of  the  court.  Not  in 
any  instance  does  one  of  them  use  language  purporting  to  be 
the  opinion  of  the  court.  All  the  judges  participated;  those 
who  dissented  seem  to  have  believed  there  was  some  judicial 
opinion  and  decree  somewhere;  thy  took  pains  to  let  the  world 
know  that  they  were  dissenting.  Although  other  members  of 
the  court  use  different  arguments,  add  to  the  reasoning,  or 
discuss  fewer  points,  yet  only  the  two  dissent.  It  is  almost 
laughably  absurd  to  me  to  say  that  those  nine  learned  men 
came  from  various  conferences  and  did  not  know  that  there 
was  a  majority  upon  EACH  question  decided  by  the  Chief 
Justice.  After  the  conference  discussion,  the  first  thing  the 
Chief  Justice  did  was  to  tell  them  HIS  decision,  then  he  re 
quired  theirs.  And  this  case  was  conducted  like  all  others. 
With  this  fact,  notice,  again  but  briefly,  the  language  of  the 
other  members  of  the  court:  Judge  Wayne:  "I  concur  in  the 
opinion  of  the  court;"  Grier :  "I  also  concur  in  the  opinion  of 
the  court;"  Daniel:  ".  .  .  the  opinions  of  a  majority  of  the 
court,  including  my  own,  are  perfectly  coincident;"  Catron : 
"I  concur  with  my  brother  judges,  that  Scott  is  a  slave,  and 
was  so  when  this  suit  was  brought."  Mr.  Justice  Curtis  in 
his  dissenting  opinion  admits  that  the  judgment  was  pro 
nounced  by  a  majority  of  the  court,  and  in  the  last  letter 
written  to  Chief  Justice  Taney  in  conclusion  of  their  con 
troversy  concerning  the  order  issued  to  the  clerk  forbidding 
copies  of  the  opinion  to  be  published  prior  to  the  official  publi 
cation,  Judge  Curtis,  writing  June  16,  1857,  said:  "I  did  not 
then  [in  a  former  letter],  nor  have  I  at  any  time,  considered 
that  I  had  a  right  to  a  voice  on  the  question  whether  the 


2°Tyler's  Taney,  p.   309. 


OF    THE    DRED    SCOTT    DECISION  49 

majority  of  the  judges  would  allow  THEIR  OPINION  to 
be  published  otherwise  than  by  the  reporter."21  He  was 
speaking-  directly  in  reference  to  the  opinion  as  written  by 
Judge  Taney;  and  Judge  Taney  throughout  their  correspond 
ence  and  elsewhere  always  spoke  of  his  work  as  "the  opinion 
of  the  court  delivered  from  the  bench."22 


21Curtis'   Life   of   Curtis,   v.    i,   p.    222. 

22It  is  sometimes  stated  that  Taney  "discredited  himself  by  the  most  unprofessional 
act  ever  committed  by  a  United  States  judge"  by  rewriting  his  opinion  after 
reading  it  from  the  bench.  See,  for  instance,  Encyclopaedia  Americana,  1903,  Dred 
Scott  Case.  This  statement  is  so  absolutely  without  foundation,  and  is  so  unjust 
to  the  Chief  Justice,  that  it  is  merely  necessary  to  call  attention  to  the  fact  to  refute 
it.  Having  been  thus1  accused  in  his  lifetime,  Taney  replied  that  there  had  been 
"nothing  altered,"  and  no  change  whatever  except  the  mere  citation  of  further 
authorities  and  proofs  to  maintain  what  he  had  announced,  and  which  had  not  been 
denied  until  after  he  read  the  opinion.  His  admitted  integrity  settles  the  matter; 
but  if  it  did  not  the  fact  that  no  member  of  the  court  who  concurred  with  him 
ever  complained,  would  do  so.  Taney's  action  \vab'  entirely  proper  and  in  keeping 
with  what  is  done  in  judicial  circles  every  day. 


IV. 
CITIZENSHIP  OF  NEGROES. 

As  soon  as  the  record  before  the  Federal  Supreme  Court 
was  opened,  the  question  of  the  jurisdiction  of  the  trial  court, 
which  had  been  raised  by  the  defendant  by  a  special  plea, 
naturally  first  presented  itself.  This  plea,  known  in  law  as  a 
plea  in  abatement,  presented  statements  as  facts  which,  it 
contended,  showed  want  of  jurisdiction  in  the  trial  court  to 
do  more  than  pass  upon  their  sufficiency.  Scott  demurred  to 
this  plea;  that  is,  he  admitted  the  truth  of  its  statements 
and  denied  they  were  sufficient  to  defeat  a  hearing  of  his  full 
case.  Entering  upon  a  consideration  of  the  issue  thus  joined, 
the  trial  court,  as  a  preliminary  judgment,  decided  that  the 
facts  of  the  plea  did  not  defeat  Federal  jurisdiction.  Finding 
all  this  in  the  very  first  of  the  proceeding  certified  to  it,  the 
first  question  which  met  the  Supreme  Court  was :  Shall  this 
appellate  court  pass  upon  this  preliminary  judgment  of  the 
trial  court,  necessarily  involving  an  examination  of  the  ad 
mitted  facts  of  the  plea ;  or  shall  the  higher  court  ignore  the 
plea  and  the  judgment  thereon,  and  pass  only  into  the  subse 
quent  questions? 

As  we  have  seen,  the  court  answered  by  passing  upon  the 
questions  raised  by  the  plea.  To  this  action  both  Curtis  and 
McLean  assented,  differing  from  the  majority  only  as  to 
the  conclusion  to  be  reached.  That  the  plea  and  the  question 
of  the  correctness  of  the  trial  court's  judgment  thereon  were 
properly  before  the  higher  court  there  can  be  no  doubt;  and 
that  such  is  the  settled  rule  of  appellate  procedure  is  generally 
recognized.  The  battle  was  as  to  the  conclusion  that  the  court 

50 


OF    THE    DRED    SCOTT    DECISION  51 

should  reach  upon  the  question  presented  by  the  admitted 
facts  set  out  in  the  plea.  Taney  and  the  majority,  Curtis  and 
McLean  dissenting,  held  that  upon  the  facts  of  that  plea  the 
trial  court  had  no  jurisdiction  to  hear  the  case  upon  its  merits, 
because  negroes  descended  from  American  slave  ancestors 
were  not  such  persons  as  the  word  citizen  means  when  the 
Constitution  gives  Federal  courts  jurisdiction  over  suits  be 
tween  citizens  of  different  States.  Was  this  correct? 

To  history  the  importance  of  the  answer  lies  mainly  in 
the  fact  that  the  North  was  lashed  into  a  fury  in  the  belief  en 
gendered  by  the  hypnotic  power  of  the  exacerbationists  that 
the  opinion  had  announced  for  negroes  whose  parents  had 
been  legal  American  slaves,  a  status  unprecedented,  unchrist 
ian,  and  unwarranted  by  our  la\vs;  and  that  in  arguing  this 
point  Taney  had  declared  that  the  "negro  had  no  rights  which 
the  white  man  was  bound  to  respect."  Some  historians  yet 
adhere  to  this  latter  misrepresentation ;  and  by  others  even  yet 
the  words  of  the  Chief  Justice  are  not  fairly  construed  or 
correctly  quoted. 

The  plea  to  the  jurisdiction  says  that  the  court  should 
not  take  cognizance  of  the  action,  "because  said  cause  of  ac 
tion,  and  each  and  every  one  of  them  (if  any  such  have  ac 
crued  to  the  said  Dred  Scott)  accrued  to  the  said  Dred  Scott 
out  of  the  jurisdiction  of  this  court,  and  exclusively  within 
the  jurisdiction  of  the  courts  of  Missouri,  as  alleged  in  his 
declaration,  because  he  is  a  negro  of  African  descent ;  his 
ancestors  were  of  pure  African  blood,  and  were  brought  into 
this  country  and  \vere  sold  as  negro  slaves,  and  this  the  said 
Sanford  is  ready  to  verify." 

Prior  to  the  fourteenth  amendment  the  Constitution  no 
where  defined  the  meaning  of  the  word  citizen,  either  by  ex 
clusion  or  inclusion ;  and  therefore  the  necessity  of  inquiring 
'for  the  meaning  of  that  word  as  indicated  by  the  principles, 
the  local  laws  and  history  with  which  the  framers  of  the 
Constitution  were  familiar.  It  is  generally  admitted  that  the 
purpose  of  the  fourteenth  amendment  of  the  Constitution  was 


i      i 

t 


52  LEGAL  AND  HISTORICAL  STATUS 

to  overrule  the  force  of  the  Dred  Scott  decision  and  establish 
for  negroes  born  or  naturalized  in  the  United  States,  and  sub 
ject  to  the  jurisdiction  thereof,  citizenship  both  of  the  United 
States  and  of  the  State  wherein  they  reside.1  So  in  examining 
the  question  of  citizenship  we  must  remember  that  it  is  to  be 
determined  as  it  was  before  the  amendments  made  since  the 
war  between  the  States ;  that  is,  we  must  find  the  sense  in 
which  the  word  was  used  in  the  Constitution  at  the  time  of 
the  adoption  of  that  instrument.2 

That  this  is  the  correct  method,  the  only  method  in  fact, 
as  we  have  seen  elsewhere,  the  dissenting  judges  agreed,  and 
no  one  disputes.  That  this  may  be  seen  while  at  the  same  time 
we  get  the  grounds  upon  which  the  dissenting  judges  held 
that  negroes,  even  though  descended  from  slave  parents,  were 
citizens,  let  me  quote  Judge  Curtis.  His  position  is  repre 
sentative.  He  argued  : 

"Citizens  of  the  United  States  at  the  time  of  the  adoption 
of  the  Constitution  ctm  have  been  no  other  than  citizens  of 
the  United  States  under  the  Confederation.  By  the  articles 
of  Confederation,  a  government  was  organized,  the  style 
whereof  was,  'The  United  States  of  America'.  This  govern 
ment  was  in  existence  when  the  Constitution  was  framed  and 
proposed  for  adoption,  and  was  to  be  superseded  by  the  new 
government  of  the  United  States  of  America,  organized  under 
the  Constitution.  When,  therefore,  the  Constitution  speaks 
of  citizenship  of  the  United  States,  existing  at  the  time  of  the 
adoption  of  the  Constitution,  it  must  necessarily  refer  to 
citizenship  under  the  government  which  existed  prior  to  and 
at  the  time  of  such  adoption. 

".  .  .  it  may  safely  be  said  that  the  citizens  of  the  several 
States  were  citizens  of  the  United  States  under  the  Confedera 
tion. 

"The  government  was  simply  a  confederacy  of  the  several 


1  In   re  Look  Ting   Sing,    (1884)    21    Fed.    Rep.   909;   Marshall   vs.    Donovan,    (1874) 
10    Bush.     (Ky.)     687;     Slaughter-house    Cases,     16    Wallace     (U.     S.)     73;     U.     S.    vs. 
Wong    Kim    Ark,    169    U.    S.    676. 

2  For    an    interesting    discussion    of    citizenship    under    the    present     Constitution, 
see   Minor  vs.    Happersett,    (1874)    20  Wall.    162. 


OF    THE    DRED    SCOTT    DECISION  53 

States,  possessing  a  few  defined  powers  over  subjects  of  gen 
eral  concern,  each  State  retaining  every  power,  jurisdiction, 
and  right  not  expressly  delegated  to  the  United  States  in  Con 
gress  assembled.  And  no  power  was  thus  delegated  to  the 
government  of  the  Confederation,  to  act  on  any  question  of 
citizenship,  or  to  make  any  rules  in  respect  thereto.  The  whole 
matter  was  left  to  stand  on  the  action  of  the  several  States, 
and  to  the  natural  consequences  of  such  action,  that  the  citi 
zens  of  each  State  should  be  citizens  of  that  Confederacy  into 
which  that  State  had  entered,  the  style  whereof  was  the  'United 
States  of  America'. 

"To  determine  whether  any  free  persons,  descended  from 
Africans  held  in  slavery,  were  citizens  of  the  United  States 
under  the  Confederation,  and  consequently  at  the  time  of  the 
adoption  of  the  Constitution  of  the  United  States,  it  is  only 
necessary  to  know  whether  any  such  persons  were  citizens  of 
either  of  the  States  under  the  Confederation,  at  the  time  of  the 
adoption  of  the  Constitution. 

"Of  this  there  can  be  no  doubt.  At  the  time  of  the 
ratification  of  the  Articles  of  Confederation,  all  free-born 
inhabitants  of  the  States  of  Xew  Hampshire,  Massachusetts, 
Xew  York,  Xew  Jersey,  and  Xorth  Carolina,  though  de 
scended  from  African  slaves,  were  not  only  citizens  of  those 
•States,  but  such  of  them  as  had  the  other  necessary  qualifica 
tions  possessed  the  franchise  of  electors,  on  equal  terms  with 
other  citizens."3 

Xow,  as  one  follows  Judge  Curtis'  argument  upon  this 
question,  he  cannot  help  being  surprised  at  his  conclusions. 
He  admits  that  the  term  citizen  as  used  in  the  Constitution  in 
the  clause  in  question,  means  citizens  of  the  United  States,  and 
argues  that  "as  free  colored  persons  born  within  some  of  the 
States  are  citizens  of  those  States,  such  persons  are  also  citi 
zens  of  the  United  States;"  that  such  citizens,  residing  in  any 
State  are  the  citizens  meant  by  the  Constitution  and  so  may 
sue  and  be  sued  in  the  Federal  courts;  and  that  the  fact  that 


3  19     Howard,     572. 


54  LEGAL  AND  HISTORICAL  STATUS 

Scott  was  of  African  descent,  and  that  his  ancestors  were  sold 
as  slaves,  shows  nothing,  therefore,  inconsistent  with  his  citi 
zenship  of  the  United  States.4  That  is,  the  exact  opposite  of 
the  present  law  under  the  fourteenth  amendment,  "that  there 
was  no  such  thing  as  a  citizen  of  the  United  States,  except  as 
that  condition  arose  from  citizenship  of  some  State;"5  and, 
such  being  true,  that  the  framers  and  adopters  of  the  Con 
stitution,  in  the  use  of  the  word  citize-n  in  the  Federal  jurisdic 
tion  clause,  imposed  upon  the  eight  States  and  all  others  there 
after  to  be. admitted  the  standard  of  citizenship  recognized  by 
the  five.  This  is  nothing  short  of  the  argument  that  because 
a  thing  is  true  of  a  part  it  is  true  of  the  whole,  a  falacy  requir 
ing  no  astuteness  to  detect.  For,  as  Judge  Curtis  tacitly  ad 
mits,  if,  under  the  Articles  of  Confederation  and  subsequently 
at  the  adoption  of  the  Constitution,  of  the  thirteen  colonies, 
later  States,  eight  recognized  as  the  definition  of  a  citizen  such 
marks  as  did  not  include  free  negroes;  and  five  recognized 
such  as  did  include  the  free  negro,  the  Constitution  and  the 
parties  adopting  it  being  silent  as  to  which  standard  measured 
its  word  citizen,  it  is  clear  the  court  could  not  do  otherwise 
than  adopt  and  apply  one  of  the  two.  They  were  so  absolutely 
diametrical  that  there  was  no  middle  ground. 

Now,  it  seems  to  me,  aside  from  the  internal  evidence  of 
the  Constitution  in  part  relied  upon  by  Chief  Justice  Taney, 
that  the  history  of  the  times,  the  laws  of  all  the  States  both  at 
the  adoption  of  the  Constitution  and  subsequent  thereto,  aside 
from  the  unreasonable  proposition  that  the  standard  of  the 
minority  had  been  adopted  over  that  of  the  majority  and  that 
without  specific  evidence,  and  the  writings  of  eminent  lawyers, 
leave  no  room  to  doubt  as  to  the  correctness  of  these  two  propo 
sitions. 

As  we  take  a  survey  of  the  field  it  is  important  to  bear 
in  mind  that  the  question  of  jurisdiction  resting  upon  citi 
zenship,  as  presented  by  the  admitted  facts  of  the  plea,  stood 


*  19    Howard,    588. 

6  U.    S.    vs.    Anthony,     n     Blatchf.     (U.    S.)     200. 


OF    THE    DRED    SCOTT    DECISION  55 

upon  two  propositions.  Either  was  fatal  to  the  jurisdiction 
which  Scott  invoked.  Than  the  one  indicated  the  other  was 
that  to  be  a  negro  was  prima  facie  evidence  of  slave  birth, 
and  that  through  life  the  presumption  of  slavery  continued 
to  follow  the  negro.  Admittedly  such  a  person,  that  is  one  who 
was  a  negro  and  born  a  slave  and  who  did  not  counteract  the 
presumption  that  he  continued  a  slave,  was  not  the  citizen 
who  could  sue  and  be  sued  as  authorized  by  the  Constitution. 
Now  Scott,  Taney  and  the  majority  contended,  in  admitting 
the  facts  of  the  plea  had  admitted,  in  legal  effect,  that  he  was 
born  a  slave.  Since  the  dissenting  judges  based  their  argu 
ment  upon  the  position  that  only  such  negme_s__AS  jwej"e  Jr^ 
native  bgrn_w.er.e  citizens  of  a  State  and  therefore  of  the  United 
States  and  hence  the  citizens  who  could  sue  as  provided  in  the 
jurisdiction  clause,  the  force  of  the  position  of  the  majority 
could  not  be  escaped.  No  one,  therefore,  questioned  that 
if  Scott,  in  admitting  the  truth  of  the  statement  in  the  plea, 
had  admitted  either  literally  or  in  legal  effect  that  he  was 
born  a  slave,  then  the  burden  was  upon  him  to  establish 
his  citizenship  in  some  other  way  than  by  birth.  The  dissent 
ing  judges  sought  to  escape  the  result  of  the  presumption 
in  such  cases,  by  asserting  that  the  plea  did  not  either  actually 
or  in  legal  effect  allege  that  Scott  had  been  born  a  slave.6 
But  the  majority  of  the  court  held  firmly  to  the  position  that 
Scott,  being  in  a  slave  State  at  the  time  of  suit  brought,  and 
that,  by  admitting  the  statements  of  the  plea,  he  admitted  that 
he  was  of  pure  African  descent,  and  that  his  ancestors  were 
American  slaves,  thus  admitted  that  he,  too,  had  been  born  a 
slave;  and  for  the  reason  that  to  be  a  negro  zvas  to  be  pre 
sumed  a  slave,  and  of  course  born  a  slave. 

Now,  if  this  was  the  existing  and  applicable  presumption, 
since  Scott,  upon  the  question  of  jurisdiction  in  the  trial 
court,  made  no  effort  to  rebut  or  remove  it,  upon  the  facts  of 
the  plea  it  appeared  that  the  trial  court  was  without  jurisdic 
tion. 


6  19    Howard,    McLean's    argument,    532;    Curtis'    569. 


56  LEGAL  AND  HISTORICAL  STATUS 

There  are  many  presumptions  in  our  law,  and  we  presume 
many  things  in  the  business  world.  If  I  sell  a  horse  I  am 
presumed  to  have  the  title  to  him ;  every  man  is  presumed  to 
be  sane;  at  the  creation  of  the  Constitution  all  white  persons 
were  presumed  to  have  been  born  free;  and  many  such.  I 
may  not  have  had  the  title  to  my  horse ;  the  man  of  whom 
I  bought  my  farm  may  have  been  mentally  unbalanced,  &c. 
But,  being  in  possession,  if  I  sell  a  horse  the  burden  is  upon 
him  who  alleges  my  want  of  title  to  overcome  the  presump 
tion  in  my  favor  and  to  establish  as  a  fact  his  charge.  Until 
he  does  so  the  court  will  protect  me  in  quietly  resting  upon  the 
presumption.  All.  presumptions  will  be  treated  as  conclusive 
by  courts  //;////  the  contrary  is  shown.  So  in  the  days  of  slav 
ery  all  negroes  were  presumed  to  be  born  slaves,  and  a  fortiori 
when  it  was  shown  that  there  had  been  legal  slavery  in  the 
ancestral  line.  AYhen  it  was  admitted  that  a  person  was  a  ne 
gro  and  that  he  was  of  slave  parents,  even  remotely  in  the 
ancestral  line,  the  burden  was  upon  him  to  show  that  the  slav 
ery  had  been  terminated.  In  denying  this  fact  those  who 
agreed  with  Air.  Justice  Curtis  committed  a  blunder  which 
vitiated  the  conclusions  which  they  wished  to  establish. 

The  evidence  upon  this  question  of  presumption  may 
be  noticed  first,  because  it  is  important  light  upon  the  word 
citizen  as  used  in  the  Constitution. 

Judge  McLean,  concurring  with  Curtis  in  the  contention 
that  Scott  was  presumed  to  have  been  born  free,"  directs  at 
tention  to  the  rules  maintaining  in  the  Southern  States.  In 
doing  this  he  furnishes  evidence  destructive  of  what  he  de 
sired  to  establish.  True,  there  was  no  source  from  which  he 
could  have  drawn  support,  and  it  is  almost  pathetic  to  watch 
him  pull  down  upon  his  own  head  the  structure  under  which 
he  professed  to  find  shelter.  In  referring  specifically  to  the 
law  in  Tennessee,  he  ignored  the  rule  which  his  own  court 
had  theretofore  ratified.  In  1834  the  Supreme  Court  of  the 
United  States  decided :  "It  is  admitted  to  be  a  settled  rule  in 


19     Howard,     532. 


OF    THE    DRED    SCOTT    DECISION  57 

the  State  of  Tennessee  that  the  issue  of  a  female  slave  fol 
lows  the  condition  of  the  mother,"  pointing  out  that  this 
condition  followed  as  "matter  of  course"  and  that  a  child 
born  of  a  mother  who  was  a  slave  only  for  a  term  of  years  he- 
came  an  absolute  slave.  As  to  each  of  these  propositions  Mc 
Lean  himself,  participating  in  the  decision  in  1834,  assented 
along  with  such  associates  as  Judge  Story  of  Massachusetts. 

A  full  examination  of  the  Tennessee  cases,  beginning 
with  Abraham  Vaughn  vs.  Phoebe,  "a  woman  of  color,"  de 
cided  by  the  supreme  court  of  Tennessee  in  January,  1827, 
down  to  Bennett  vs.  the  State,  decided  by  the  same  court  in 
March,  1852,  not  only  refutes  McLean  but  supports  the  prin 
ciple  upon  which  the  majority  acted.  In  1815  that  State  had 
provided  a  special  tribunal  which  was  given  exclusive  juris 
diction  over  cases  in  which  negro  slaves  were  charged  with 
petit  larceny  and  kindred  offences.  A  few  months  before  the 
case  reached  the  higher  court,  a  person  was  indicted  in  the 
proper  court  at  Memphis,  and  was  described  as  "a  negro  of 
black  complexion."  The  indictment  was  wholly  silent  as  to 
the  negro's  condition,  as  slave  or  free,  and  there  w7as  no  proof, 
and  consequentlv  nothing  in  the  record,  to  show  whether  the 
accured  was  a  slave  or  a  free  negro, — unless  there  were  some 
legal  presumption  growing  out  of  the  allegation  that  the  ac 
cused  was  a  negro.  So  here  the  question  of  presumption  was 
directly  in  point,  and  was  the  only  point.  Said  the  supreme 
court:  "in  a  community  where  the  almost  universal  condition 
of  the  black  man  is  that  of  slavery,  and  where  his  complexion 
indicates  his  social  position  with  almost  as  infallible  certainty 
as  it  does  his  race,  his  color  is  to  be  regarded,  in  the  absence 
of  all  other  evidence,  as  prima  facie  proof  of  slavery.  This 
presumption  is  of  general  application,  and  in  this,  as  in  other 
cases,  is  to  stand  until  repelled  by  proof."8 

Previous  to  the  Dred  Scott  Case,  and  before  the  ques 
tions  which  it  involved  became  so  important  to  the  Republican 
and  Free-State  parties,  no  other  judge  in  America  stated 


31    Term.    Kepts.    (Cooper's    Edition)    41 


58  LEGAL  AND  HISTORICAL  STATUS 

more  clearly  or  followed  more  consistently  this  rule  presum 
ing  all  negroes  slaves  especially  when  in  slave  territory,  than 
did  Mr.  Justice  John  McLean  who  so  strangely  forgot  his  own 
rulings  when  he  came  to  pass  an  opinion  in  the  Scott  case. 
While  out  on  his  Federal  circuit  in  December,  1842,  in  deliver 
ing  the  opinion  of  the  court  in  Jones  vs.  Vanzandt,9  he  said : 
"In  Kentucky,  and  in  every  other  State  where  slavery  is 
sanctioned,  every  colored  person  is  presumed  to  be  a  slave. 
This  presumption  arises  from  the  nature  of  their  institutions, 
and  from  the  fact  that,  with  few  exceptions,  all  the  colored 
persons  within  those  States  are  slaves."  Again  in  1853,  in 
Miller  vs.  McOuerry,10  he  re-iterated  and  enforced  the  same 
law.  In  Menard  vs.  Aspasia,  writing  in  1831  the  opinion  of 
the  Supreme  Court  he  said  that,  "beyond  dispute,  the  principle 
of  the  civil  law"  was  that  the  "slavery  of  the  mother  of  Aspasia 
being  established"  "the  offspring  must  follow  the  same  condi 
tion."11  And  so  we  find  him  consistently  through  his  long 
period  of  service  down  to  the  Dred  Scott  Case.  There  and 
there  only  he  overruled  himself,  broke  all  precedents,  and 
offered  nothing  substantial  to  justify  his  iconoclasm.  In 
1853,  just  a  very  short  time  before  the  Scott  case,  he  an 
nounced  another  plain  and  universal  doctrine:  "The  Supreme 
Court  ha  ^r-r  since  held  that  that  court  and  its  judges  recog 
nize,  witiK.  .1  proof,  the  laws  of  the  several  States  and  Terri 
tories."  Now,  since  he  admitted  that  "there  is  no  slave  State, 
where  the  existence  of  slavery  is  not  recognized  and  main 
tained  by  numerous  statutes  and  judicial  decisions,"  every 
candid  mind  is  bound  to  admit  that  he  and  the  court  were 
unavoidably  obligated  to  recognize  and  enforce  all  legal  pre 
sumptions  growing  out  of  those  laws  and  recognized  by  those 
decisions.  Having  sued  in  the  slave  State  of  Missouri  and 
admitting  that  he  was  a  denizen  thereof,  having  admitted  his 
ancestors  to  have  been  negro  slaves,  all  the  presumptions  in- 


9  2    McLean's    Circuit    Court    Reports,     607. 
1°  5   McLean's-  C.    C.    R.   484- 
11  5     Peters,     513. 


OF    THE    DRED    SCOTT    DECISION  59 

cident  to  slave  conditions  applied  to  Scott's  case,  were  part  of 
the  law  and  needed  no  proof  before  the  Supreme  Court  of  the 
United  States. 

This  was  true  especially  in  States  where  slave  labor  was 
legal,  and  when  we  turn  to  those  States  upon  which  Mr. 
Justice  Curtis  relied  for  establishing  his  contention  as  to  citi 
zenship  we  also  find  that  it  was  not  only  true  as  to  each  of 
them  but  that  the  fact  that  they  afforded  free  negroes  some 
of  the  rights  of  citizens  did  not  indicate  that  such  negroes 
were  regarded  as  citizens  in  the  sense  which  that  word  in  the 
Constitution  undoubtedly  was  meant  to  convey. 

At  an  early  day  New  York  provided  in  her  election  law: 
"That  whenever  any  black  or  mulatto  person  shall  present 
himself  to  vote  at  any  election  in  this  State,  he  shall  produce 
to  the  inspector  or  persons  conducting  such  election,  a  certifi 
cate  of  his  freedom,  under  the  hand  and  seal  of  any  one  of 
the  clerks  of  the  counties  of  this  State  or  under  the  hand  of 
any  clerk  of  any  town  of  this  State."  Before  such  person 
could  obtain  such  certificate,  he  must  make  proof  of  his  claim 
to  freedom.  When  he  presented  such  certificate  and  offered 
to  vote,  he  was  not  even  presumed  to  be  the  person  described 
therein;  the  whites  had  the  legal  right  to  require  him  to 
make  oath  that  he  was  the  person  described  in  the  certificate 
which  he  offered.12 

March  26,  1783,  Massachusetts  passed  a  law  forbidding 
"an  African  or  negro"  to  tarry  within  the  Commonwealth 
for  a  longer  time  than  two  months,  unless  such  persons  could 
produce  a  certificate  from  the  Secretary  of  the  State  of  which 
such  persons  claimed  to  be  a  citizen  showing  that  he  was  such ; 
and  where  such  negro  did  not  have  the  required  certificate  it 
was  further  provided  that  "upon  complaint  made  to  any  jus 
tice  of  the  peace  of  this  Commonwealth,  that  any  such  person 
has  been  within  the  same  more  than  two  months,  the  said  jus 
tice  shall  order  the  said  person  to  depart  out  of  the  Common 
wealth  ;  and  in  case  that  the  said  African  or  negro  shall  not 


12  See    Laws    of    New    York    in    force    in    1813,    p.    205. 


60  LEGAL  AND   HISTORICAL  STATUS 

depart  as  aforesaid,  shall  commit  the  said  person  to  any  house 
of  correction  within  the  said  county,  there  to  be  kept  at  hard 
labor  agreeably  to  the  rules  and  orders  of  the  said  house, 
until  the  Sessions  of  the  Peace,  next  to  be  holden  within  and 
for  the  said  county;  and  the  master  of  the  said  house  of  correc 
tion  is  hereby  required  and  directed  to  transmit  an  attested 
copy  of  the  warrant  of  commitment  to  the  said  court  on  the 
first  day  of  their  said  session;  and  if,  upon  trial  at  the  said 
court,  it  shall  be  made  to  appear  that  the  said  person  has  thus 
continued  within  this  Commonwealth  contrary  to  the  tenor  of 
this  Act,  he  or  she  shall  be  whipped  not  exceeding"  ten  stripes, 
and  ordered  to  depart  out  of  this  Commonwealth  within  ten 
days;  and  if  he  or  she  shall  not  depart,  the  same  process  shall 
be  had  and  punishment  inflicted,"  and  so  totics  quoties.13 

This  statute  of  Massachusetts  is  one  of  the  strongest 
proofs  that  homeless,  friendless,  free  negroes  from  other  States 
in  the  American  Union  had  no  rights  which  the  white  man  of 
Massachusetts  was  bound  to  respect  so  far  as  citizen  rights 
are  defined  and  protected  by  the  Constitution. 

Next  as  to  New  Jersey.  In  March,  1798,  included  in 
her  revised  laws  of  1821,  she  passed  a  law  which  provided: 
"No  free  negro  or  mulatto,  of  or  belonging  to  any  other  State 
in  the  Union,  shall  be  permitted  to  travel  or  reside  in  this 
State,  without  a  certificate  from  two  justices  of  the  peace 
of  such  other  State,  that  such  negro  or  mulatto  was  set  free, 
or  deemed  and  taken  to  be  free  in  that  State."  With  refer 
ence  to  negroes  or  mulattoes  of  New  Jersey  the  law  imposed 
a  similar  requirement  before  they  were  permitted  to  travel 
outside  of  the  county  in  which  they  resided.  Along  with  this 
law  the  act  of  March  17,  1798,  recognized,  legalized  and  con 
tinued  her  existing  slavery.14 

Nothing  can  be  plainer  than  that  notwithstanding  New 
Jersey  gave  free  negroes  a  few  of  the  privileges  accorded 
to  citizens  she  recognized  the  burden  resting  upon  them  to 


13  General    Laws    of    Massachusetts    to    1822,    v.     i,    324-5. 

14  Revised    laws    of    New    Jersey,    1821,    369    to    377. 


OF    THE    DRED    SCOTT    DECISION  6l 

remove  the  presumption  arising  against  them  solely  on  the 
ground  of  color.  And  the  fact  that  these  laws,  as  did  similar 
laws  in  other  Northern  States,  applied  to  free  negroes  in  and 
of  the  State,  traveling  from  one  county,  sometimes  district, 
to  another,  shows  that  the  law  was  made  with  no  view  to  fugi 
tive  slaves  from  other  States,  as  apologists  for  these  anti- 
negro  laws  have  sometimes  claimed.  The  question  was  simply 
one  between  the  white  man  of  the  North  and  the  free  negro, 
regardless  of  the  rights  of  citizens  of  the  slave-labor  States. 

In  North  Carolina,  from  her  earliest  days,  as  her  su 
preme  court  decided  in  1828,  the  presumption  of  slavery  arises 
from  "a  black  African  complexion."15  There  is  nothing  in 
her  early  adjudications  which  indicates  that  native  born  free 
negroes  were  citizens  in  the  sense  in  which  white  people  are 
citizens  in  the  Federal  Constitution's  use  of  the  word  citizen ; 
and  it  was  not  until  1838  that  her  highest  court  decided  that 
free  negroes  were  citizens  of  the  State.16  However  little  light 
it  furnishes  upon  the  meaning  of  the  word  citizen  as  used  in 
the  Federal  Constitution,  it  is  interesting  that  some  of  the 
members  of  the  North  Carolina  constitutional  convention  of 
1835  believed  that  the  free  negro,  as  was  pointed  out  had  been 
done  in  other  States,  ''should  not  be  politically  excommuni 
cated  and  have  an  additional  mark  of  degradation  fixed  upon 
him,  solely  on  account  of  his  color."  and  that  such  persons 
should  be  recognized  "as  a  part  of  the  body  politic;"17  and  that 
of  the  few  States  permitting  free  negroes  to  vote,  but  under 
restrictions  not  imposed  upon  the  whites,  North  Carolina  was 
the  last,  prior  to  the  war  between  the  States,  to  take  from  the 
free  negro  the  suffrage  privilege. 

One  looks  among  the  legislative  provisions,  other  than 
that  under  certain  conditions  free  negroes  had  the  privilege 
of  voting,  and  adjudications  of  New  Hampshire  in  vain  to 


15  Scott    vs.     Williams.     15     X.     C.     378. 

16  State    vs.    Manuel,    20    X.     C.    25. 

17  Proceedings   and   Debates   of  the   Convention    O^aleigh,    1836),   80. 


62  LEGAL  AND  HISTORICAL  STATUS 

find  confirmation  of  the  theory  advanced  by  the  dissenting 
justices. 

Following  emigration,  the  moulding  influence  of  which 
was  dominated  by  the  spirit  of  the  North,  as  it  moved  out  to 
build  new  States,  we  get  a  most  important  practical  construc 
tion  of  the  word  citizen  as  used  in  the  Constitution. 

In  her  territorial  (fays  Indiana  began  to  build  upon  the 
doctrine  that  the  negro  was  no  part  of  the  body  politic,  and 
.therefore  not  a  citizen.  She  maintained  this  position  until 
forced  to  abandon  it  by  the  present  amendments  of  the  Con 
stitution,  which  have  given  us  upon  this  point  an  entirely  new 
and  materially  different  Constitution.  In  1839  the  supreme 
court  of  the  State  decreed  the  constitutionality  of  her  law 
entitled :  "An  act  concerning  free  negroes  and  mulattoes,  and 
slaves.''  This  law  required  free  negroes  or  mulattoes  coining 
into  Indiana  to  give  bond  for  their  good  behavior  and  not 
to  become  a  public  charge  as  poor'  persons.  Failing  or  re 
fusing  to  give  the  required  bond,  the  negro  was  to  be  sold  into 
slavery  for  a  period  of  at  least  six  months  at  a  time  "for  the 
best  price  in  cash  that  can  be  had."18  And  so  until  he  left  or 
spent  a  life  of  slavery  or  complied  with  the  law.  Nor  was 
his  right  to  remain  as  any  freeman  to  be  determined  by  a 
jury;  a  justice  had  jurisdiction  of  such  offences  (  !)  against  the 
white  man's  superior  rights;  and  the  justice  was  fully  em 
powered  and  required,  in  the  event  the  negro  was  not  sold  as 
required  by  the  law,  to  return  such  negro  "to  the  State  where 
he  was  last  legally  settled."19  In  1840,  in  Baptiste  vs.  The 
State,  an  instance  of  an  appeal  from  a  sale  into  such  slavery 
as  this  law  provided,  came  before  the  Indiana  supreme  court, 
in  which  a  "free  man  of  color"  sought  to  enforce  his  (!) 
right  to  seek  his  own  happiness  in  whatsoever  State  he  might 
elect,  to  enjoy  the  same  privileges  of  home  and  protection  as 
the  free  citizens  of  the  several  States,  and  to  receive  the  earn 
ings  of  his  own  labor,  but  the  court  held  that  the  white  man  who 


18  5  Blackford's  Ind.   Repts.  285. 

19  Ib.    283. 


OF    THE    DRED    SCOTT    DECISION  63 

had  purchased  him  at  the  sale  pursuant  to  this  law  had  the 
legal  and  superior  right  to  hold  him  and  compel  his  service 
just  as  slaves  were  held  and  compelled  to  serve  in  the  regular 
slave  States  of  the  South,  except  of  course  the  possible  expira 
tion  of  the  term  of  service  after  the  negro  had  atoned  for  this 
crime  of  attempting  to  live  in  Indiana !  Again  in  Hickland  vs. 
The  State,  and  in  1847,  the  highest  court  of  the  State  re 
affirmed  this  law.20 

From  her  earliest  days  down  to  the  Dred  Scott  decision 
the  anti-negro  laws  of  Illinois  rested  upon  the  non-citizenship 
of  the  negro — and  so  even  regardless  of  his  ancestral  slave 
status.  Many  discriminations  against  free  negroes  from  other 
States  who  went  to  Illinois  fill  her  statute  books  and  find  sup 
port  by  her  courts.  Such  persons  were  required  to  produce  a 
certificate  of  freedom  issued  by  a  court  in  the  State  from 
which  the  negro  emigrated,  to  give  bond  not  to  become  a  charge 
as  a  poor  person,  &c.,  &c. 

February  12,  1853,  in  revising  her  anti-negro  laws  Illinois 
passed  another  act  "to  prevent  the  immigration  of  free  negroes 
into  this  State,"  so  the  caption  informs  us.  November,  1855, 
a  negro  having  appealed  from  the  judgment  of  the  lower 
court  amercing  him  in  a  fine  for  violating  this  law,  the  su 
preme  court  said :  "The  offence  consists  in  'coming  into  this 
State  and  remaining  ten  days,  with  the  evident  intention  of 
residing  in  the  same.'"21 

In  1804  Ohio  passed  a  law  that  "no  black  or  mulatto 
person  shall  be  permitted  to  settle  or  reside  in  this  State,  un 
less  he  or  she  shall  produce  a  fair  certificate  from  some  court 
within  the  United  States,  of  his  or  her  actual  freedom;" 
and  under  the  law  of  1807  bond,  in  addition  to  the  proof  of 
freedom,  was  required  before  a  free  negro  could  lawfully  re 
main  in  the  State.  Her  first  constitution  conferred  the  right 
to  vote  upon  whites  only,  which  denied  that  a  negro  was  even 
a  person  in  the  sense  in  which  that  word  is  used  in  the  Ordi- 


20  8    Blackford,    365;    see    R.    S.    1838,    418-19,    for    one    of    the    statutes. 

21  Torrey   vs.   The   People,    17   111.    Repts.    105. 


64  LEGAL  AND  HISTORICAL  STATUS 

nance  of  1/87.  Color,  in  Ohio,  raised  more  than  a  presump 
tion  of  slavery ;  even  when  known  to  be  free  it  was  a  badge 
of  isolation,  a  mark  of  exclusion  from  both  privileges  of  citi 
zenship  and  the  primary  and  basal  right  of  freedom,  which 
is  change  of  residence  at  will.  Under  her  law  "color  alone 
is  sufficient  to  indicate  a  negro's  inability  to  testify  against 
a  white  man,"  said  her  supreme  court  in  183 1.22 

In  December,  1842,  Justice  Read  of  that  same  court, 
in  Thacher  vs.  Hawk,  said :  "It  has  always  been  admitted, 
that  our  political  institutions  embrace  the  white  population 
only.  Persons  of  color  were  not  recognized  as  having  any  po 
litical  existence.  They  had  no  agency  in  our  political  organiza 
tions,  and  possessed  no  political  rights  under  it.  Two  or  three 
of  the  States  form  exceptions.  The  constitutions  of  fourteen 
expressly  exclude  persons  of  color  by  a  provision  similar  to 
our  own  ;  and,  in  the  balance  of  the  States,  they  are  excluded 
on  the  ground  that  they  were  never  recognized  .as  a  part  of 
the  body  politic.  .  .  .  Indeed,  it  is  a  matter  of  history,  that 
the  very  object  of  introducing  the  word  white  into  our  consti 
tution,  by  the  convention  framing  that  instrument,  was  to 
put  this  question  beyond  all  cavil  or  doubt,  by,  in  express  terms, 
excluding  all  persons  from  the  enjoyment  of  the  elective  fran 
chise,  except  persons  of  pure  white  blood. 

"During  our  Territorial  organization,  although  the  Ordi 
nance  and  Territorial  organic  Act,  designating  the  qualifica 
tions  of  electors,  employed  the  phraseology — 'all  free  male 
inhabitants,'  &c.,  yet  no  negro,  or  person  of  any  degree  of  black 
blood,  was  ever  permitted  to  vote.  The  fact  is  familiar  to  the 
old  inhabitants,  who  resided  here  during  the  Territorial  or 
ganization. 

"Judge  Burnet,  who  is  as  familiar  with  the  early  history 
of  Ohio  as  any  man  in  the  State,  and  was  engaged  in  the 
practice  of  law  in  the  Territory,  and  had  been  prominently 
connected  with  the  administration  of  its  affairs,  remarks,  in 
one  of  his  historical  letters,  published  in  the  transactions  of 


22  Calvin    vs.    Carter,    4    Hammond's    O.    R.    351. 


OF    THE    DRED    SCOTT    DECISION  65 

the  Historical  and  Philosophical  Society  of  Ohio,  vol.  1st,  pt. 
2<d,  page   in: 

".  .  .  'the  result  of  those  discussions  in  the  constitu 
tional  convention,  was  an  abandonment  of  all  the  propositions 
which  had  been  made,  and  a  general  conviction  that  a  constitu 
tion  should  be  made  for  the  free  white  population  of  the  dis 
trict,  who,  alone,  were  represented  in  the  convention ;  that  its 
phraseology  should  be  so  guarded  as  to  show  that  people  of 
color  were  not  considered  as  parties  to  the  compact;  and, 
as  they  had  no  agency  in  its  formation,  so  they  should  have 
none  in  its  administration.' 

".  .  .  Hence,  we  find,  so  early  as  1804,  followed  up  by 
another  act  in  1807,  statutes  discouraging  the  emigration  of 
blacks  into  our  State,  and  imposing  upon  those  among  us 
such  conditions  and  restrictions  as  would  induce  the  vast 
majority  of  them  to  quit  the  State.  Thus,  we  have  denied 
them  all  constitutional  right  to  remain  even  in  the  State.-  .  .  . 

"This  exclusion  of  persons  of  color,  or,  of  any  degree  of 
colored  blood,  from  all  political  rights,  is  not  founded  upon 
a  mere  naked  prejudice,  but  upon  natural  differences.  The 
two  races  are  placed  as  wide  apart  by  the  hand  of  nature  as 
white  from  black,  and,  to  break  down  the  barriers,  fixed,  as 
it  were,  by  the  Creator  himself,  in  a  political  and  social  amal 
gamation,  shocks  us,  as  something  unnatural  and  wrong.  It 
strikes  us  as  a  violation  of  the  laws  of  nature.  It  would  be 
productive  of  no  good.  It  would  degrade  the  white,  if  it  could 
be  accomplished,  without  elevating  the  black.  Indeed,  if  we 
gather  lessons  of  wisdom  from  the  history  of  mankind — walk 
by  the  light  of  our  experience,  or  consult  the  principles  of 
human  nature,  we  shall  be  convinced  that  the  two  races  never 
can  live  together  upon  terms  of  equality  and  harmony."2* 
These  regulations  were  the  work  of  men  from  the  North.24 

Turn  now  to  that  splendid  country  covered  by  the  pres 
ent  State  of  Oregon.  Though  not  precedent,  this  action 


23  1 1    Stanton's    Ohio    Rep.    384-5. 

24  Ewing,    Northern    Rebellion   and    Southern    Seces'sion,    69    et    seq. 


66  LEGAL  AND  HISTORICAL  STATUS 

of  Oregon,  being  the  result  of  Northern  influence,  is  all  the 
more  important.  In  the  constitution  which  her  people  ratified 
in  1857,  art.  i.,  sec.  35,  we  read:  "No  free  negro  or  mulatto 
not  residing  in  this  State  at  the  adoption  of  this  constitution, 
shall  come,  reside,  or  be  within  this  State,  or  hold  any  real 
estate,  or  make  any  contracts,  or  maintain  any  suit  therein; 
and  the  legislative  assembly  shall  provide  by  penal  laws  for  the 
removal  by  public  officers  of  all  such  negroes  and  mulattoes, 
and  for  their  effectual  exclusion  from  this  State,  and  for  the 
punishment  of  persons  who  shall  bring  them  into  the  State, 
or  employ  or  harbor  them." 

December  9,  1857,  Governor  Geo.  L.  Curry  certified  that 
8,641  free  white  citizens  of  Oregon  had  voted  in  favor  of  this 
provision,  while  only  1,081  opposed  it.25  And  this  constitu 
tion  was  drafted  by  a  convention  of  sixty  members,  one- 
fourth  of  whom  were  lawyers!  The  members  are  said  to 
have  been  "men  of  talent,  learning  and  experience,  men  of 
great  individuality,  of  character  and  strong  common  sense — 
men  of  high  courage  and  strong  convictions  of  duty."26 

As  can  readily  be  gathered  from  the  decisions  by  the 
supreme  court  of  California,  some  of  which  are  quoted  in 
another  connection,  that  State  assigned  to  the  negro  a  status 
based  entirely  upon  his  non-citizenship.27 

Just  a  few  months  before  the  Dred  Scott  decision  the 
Northern  emigrants  in  Kansas  drafted  and  ratified  a  consti 
tution  upon  which  they  proposed  to  build  a  free  State — but  for 
free  white  people  only.  They  held  that  a  free  negro,  and 
above  all  a  slave,  was  not  a  citizen  in  the  sense  in  which  that 
word  is  used  in  the  Constitution  of  the  United  States,  so 
their  constitution  forbade  the  settlement  of  free  persons  of 
color  in  the  State.28  And  this  provision  was  ratified  by  the 
Northern  element  by  popular  vote  of  2,223  to  453 '29  No 


25  Gen.   Laws  of  Oregon,    1845-64,    129. 

26  Gov.    W.    P.    Lord,   in    Fortieth   Anni.    of    Ore.,    14. 

27  Compiled    Laws    and    Acts    of    Calif.,    1850-53,    233. 
2a  Von    Hoist,    5    Const,    and    Pol.    Hist.    U.    S.     168. 

28  Chas.   R.  Little,  New  Cent.   Hist.   Kansas,  279. 


OF    THE    DRED    SCOTT    DECISION  67 

wonder  Gov.  Walker,  in  May,  1857,  exclaimed  that  if  such 
persons  were  citizens  of  the  United  States  "they  could  not 
be  constitutionally  excluded  or  exiled  from  Kansas."30  Yet 
State  legislatures  of  the  North  and  in  great  numbers  leading 
men  of  that  section  supported,  aided,  abetted  or  fought  in  Kan 
sas  open  rebellion  against  the  Federal  troops  to  maintain  that 
principle. 31 

Turning  once  more  to  the  older  States. 

In  1833  Connecticut  enacted  a  law  forbidding  the  setting 
up  or  establishment  of  any  "school,  academy,  or  literary  insti 
tution,  for  the  instruction  or  education  of  colored  persons, 
who  are  not  inhabitants  of  this  State."  The  alleged  grounds 
of  the  law  were  that  such  institutions  tended  "to  the  great 
increase  of  the  colored  population  of  the  State,  and  thereby 
to  the  injury  of  the  people."  In  October  of  the  same  year  a 
case  raising  the  question  of  the  validity  of  this  law  came 
before  Hon.  David  Daggett,  chief  justice  of  the  supreme 
court  of  errors.  The  defendant  insisted  that  the  law  was  un 
constitutional  because  in  violation  of  Art.  4,  sec.  2  of  the  Con 
stitution  of  the  United  States,  which  provides  that,  "The  citi 
zens  of  each  State  shall  be  entitled  to  all  privileges  and  im 
munities  of  citizens  in  the  several  States."  The  case  rested 
upon  this  claim.  The  court  instructed  the  jury: 

"The  Constitution  of  the  United  States  is  above  all  other 
law, — it  is  emphatically  the  supreme  law  of  the  land.  .  .  . 
does  this  [school  law]  .  .  .  violate  the  Constitution  of  the 
United  States?  .  .  .  The  law  extends  to  all  persons  of  color 
not  inhabitants  of  this  State  .  .  .  The  persons  contemplated 
in  this  act  are  not  citizens  within  the  obvious  meaning  of  that 
section  of  the  Constitution  of  the  United  States  which  I  have 
just  read.  Let  me  begin  by  putting  this  plain  question:  Are 
slaves  citizens?  At  the  adoption  of  the  Constitution  of  the 
United  States,  every  State  was  a  slave  State.  .  .  We  all 
know  that  slavery  is  recognized  in  that  Constitution;  it  is 


30  5    Kansas    Hist.    Col.    44. 

31  Northern     Rebellion    and     Southern     Secession,     142     to     240. 


68  LEGAL  AND  HISTORICAL  STATUS 

the  duty  of  this  court  to  take  that  Constitution  as  it  is,  for  we 
have  sworn  to  support  it.  ...  Tjieji-^layes  were  not  con 
sidered  citizens  by  the  framers  of  the  Constitution.  ... 

"Are  fret  blacks  citizens?  .  .  .  To  my  mind  it  would  be 
a  perversion  of  terms,  and  the  well  known  rules  of  construc 
tion,  to  say  that  slaves,  free  blacks,  or  Indians  were  citizens, 
within  the  meaning  of  that  term  as  used  in  the  Constitution. 
God  forbid  that  I  should  add  to  the  degradation  of  this  race 
of  men ;  but  I  am  bound,  by  my  duty,  to  say  that  they  are  not 
citizens."32 

In  the  case  of  Hobbs  vs.  Fogg  the  State  of  Pennsylvania 
furnished  another  strong  precedent  for  the  decision  of  the 
Scott  case.  At  the  election  in  1835  a  negro  offered  to  vote. 
Solely  on  account  of  color,  the  judges  of  election  refused  the 
privilege.  The  negro  insisted  that  "as  a  freeman  and  citizen 
of  the  State"  the  provisions  contained  in  the  State  constitution 
and  laws  entitled  him  to  the  right  of  suffrage.  As  Chief  Jus 
tice  Taney  indicated  in  September,  1858,  this  case  is  all  the 
more  important  because  "of  the  just  weight  and  authority  of 
the  court  by  which  the  opinion  was  given;"  and  because  "so 
far  as  the  condition  of  the  African  race  in  this  country  is 
concerned,  and  the  rule  of  interpretation  which  must  be  applied 
to  public  instruments,  it  maintains  precisely  the  same  prin 
ciples  which  this  [United  States  Supreme]  Court"  sustained 
in  the  Scott  case. 

The  lower  court,  at  which,  strange  to  say,  a  judge  by 
the  name  of  Scott  presided,  held  that  the  judges  of  election 
were  liable  in  damages  for  refusing  the  negroes  a  vote.  The 
judges  justified  themselves  upon  the  ground  "that  a  free  negro 
or  mulatto  is  not  a  citizen  within  the  meaning  of  the  Con 
stitution  and  law  of  the  United  States,  and  of  the  State  of 
Pennsylvania,  and,  therefore,  is  not  entitled  to  the  right  of 
suffrage.  .  .  .  '  "This,"  said  the  court,  "is  the  question  .  .  . 
which  this  suit  was  brought  to  settle."33  At  that  time  the 


82  Crandall   vs.   The    State,    10   Conn.    Rep.,    339,    340,    344,   345,    347. 
33  6    Watts,     553,     554. 


OF    THE    DRED    SCOTT    DECISION  69 

supreme  court  of  Pennsylvania  was  composed  of  five  judges. 
The  chief  justice  delivered  the  opinion,  to  which  there  was 
unanimous  assent.  The  student  should  read  the  full  opinion. 
The  court  said :  "But  in  addition  to  interpretation  from  usage, 
this  antecedent  legislation  [which  the  court  had  just  discussed] 
declared  that  no  colored  race  was  party  to  our  social  com 
pact.  Our  ancestors  settled  the  province  as  a  community  of 
white  men ;  and  the  blacks  were  introduced  into  it  as  a  race 
of  slaves ;  whence  an  unconquerable  prejudice  of  caste,  which 
has  come  down  to  our  day  .  .  .  Consistently  with  this  preju 
dice,  is  it  to  be  credited  that  parity  of  rank  would  be  allowed 
to  such  a  race?  ...  I  have  thought  fair  to  treat  the  ques 
tion  as  it  s^a^ds  affected  by  our  own  municipal  regulations 
without  illustration  from  those  of  other  States,  where  the 
condition  of  the  race  has  been  still  less  favored.  Yet  it  is 
proper  to  say  that  the  second  section  of  the  fourth  article 
of  the  Federal  Constitution,  presents  an  obstacle  to  the  political 
freedom  of  the  negro,  which  seems  to  be  insuperable." 

Now  then,  in  addition  to  the  presumption  that  a  negro  of 
pure  African  blood  whose  ancestors  had  been  American  slaves, 
was  presumed  to  have  been  born  and  to  have  continued  a  slave, 
these  laws  show  that  all  the  States  had  given  to  the  Federal 
Constitution,  from  the  days  of  its  ratification  down  to  the 
Dred  Scott  decision,  a  practical  interpretation  agreeing  unani 
mously  that  a  negro,  though  free  and  a  native  of  a  State, 
was  not  such  a  person  as  the  word  citizen  defines  as  that  word 
was  used  by  the  framers  of  the  Constitution.  For,  as  the 
Supreme  Court  of  the  United  States  has  said,  "citizens  of  the 
United  States"  must  have  "the  right  to  pass  and  repass 
through  every  part  of  it  without  interruption  as  freely  as  in 
their  own  State.''34  Therefore,  certainly,  he  is  not  a  citizen 
of  the  United  States  to  whom  this  right  of  passing  and  re- 
passing  was  denied  for  some  hundred  years  and  down  to  that 
great  volcanic  upheaval  which  resulted  in  the  present  constitu- 

34  Crandall  vs.   Nevada,   6  Wallis,  49. 


7O  LEGAL  AND  HISTORICAL  STATUS 

tional  definition  of  a  citizen, — thus  by  amendment  making  for 
him  a  status  not  enjoyed  under  the  original  Constitution. 

Now,  there  being  nothing  in  the  history  of  any  Southern 
States  not  mentioned  in  this  discussion,  and  nothing  to  be 
found  in  the  North,  even  tending  to  show  a  different  construc 
tion  of  the  Constitution,  it  is  important  to  emphasize  the  fact 
that  this  universal  American  definition  of  the  negro's  civil 
status  is  of  the  greatest  weight  in  finding  the  meaning  of  the 
word  citizen  as  used  in  the  Constitution.  There  being,  at 
the  time  of  the  Dred  Scott  decision,  no  definition  of  the  word 
in  the  Constitution  itself,  this  method  of  reaching  the  meaning 
by  historical  evidence  is  approved  by  highest  authority.  Mr. 
Justice  Curtis,  citing  previous  decisions  of  the  Supreme  Court, 
said:  "A  practical  construction,  nearly  contemporaneous  with 
the  adoption  of  the  Constitution,  and  continued  by  repeated 
instances  through  a  long  series  of  years,  may  always  in 
fluence  and  in  doubtful  cases  should  determine  the  judicial 
mind,  on  a  question  of  the  interpretation  of  the  Constitution."35 
This  method,  followed  since  the  earliest  days,  yet  fully  main 
tains,  and  is  regarded  as  of  the  most  forcible  nature.36  The 
reason  of  the  method,  too,  should  not  be  overlooked;  and  this 
is  that,  as  was  emphasized  in  an  earlier  chapter,  in  interpret 
ing  the  Constitution  we  are  to  place  ourselves  as  nearly  as 
possible  in  the  condition  of  the  men  who  framed  that  in 
strument.  If  the  Constitution  as  interpreted  by  the  court 
was  not  what  it  should  have  been,  the  remedy  lay  not  with  the 
court  but  with  the  people, — and  their  remedy  ivas  by  amend 
ment. 

It  will  be  interesting  to  notice  one  instance  of  such  a 
contemporaneous  and  subsequent  practical  construction  of  the 
Constitution  furnished  us  in  the  history  of  Virginia. 

January  2,  1776,  in  the  secret  instructions  to  General 
Clark,  preparatory  to  those  memorable  and  glorious  "cam- 


35  19   Howard,    616. 


38  McPherson  vs.  Blacker,  146  U.  S.  27;  Burrow-Giles  Lith.  Co.  vs.  Sarony, 
(1884)  in  U.  S.  57;  The  Laura,  114  U.  S.  416;  Fairbank  vs.  the  U.  S.,  (1901) 
181  U.  S.  307;  Missouri  vs.  Illinois,  (1901)  180  U.  S.  219. 


OF    THE    DRED    SCOTT    DECISION  Jl 

paigns,  1776-9  and  1780,  whereby  he  gained  for  the  Colony 
of  Virginia  a  domain  later  known  as  the  Territory  of  the 
United  States  northwest  of  the  river  Ohio,  and  now  known  as 
the  States  of  Ohio,  Indiana,  Illinois,  Michigan  and  Wisconsin," 
issued  by  Governor  Patrick  Henry  of  Virginia,  Clark  was 
ordered  "to  attack  the  British  post  at  Kaskasky"  reduce  it 
and  take  possession  of  both  its  military  stores  and  the  sur 
rounding  country.  Then  the  governor  instructed  :  "If  the  white 
inhabitants  of  that  post  and  the  neighborhood  will  give  un 
doubted  evidence  of  their  attachment  to  this  State  (for  it  is 
certain  they  live  within  its  limits)  by  taking  the  test  prescribed 
by  law,  and  by  every  other  way  and  means  within  their  power ; 
let  them  be  treated  as  fellow  citizens,  and  their  persons  and 
property  duly  secured;  assistance  and  protection  against  all 
enemies  whatsoever  shall  be  afforded  them,  and  the  Common 
wealth  of  Virginia  is  pledged  to  accomplish  it."37 

After  many  delays  and  numerous  disappointments  Clark 
succeeded  even  beyond  expectation,  and  shortly  reported  the 
surrender  of  the  country  to  Virginia.  October,  1778,  the 
general  assembly  of  that  State  passed  an  act  establishing  a 
government  for  the  new  territory.  Its  citizens,  fellow  citizens 
of  Virginia,  were  defined  to  be  white  people.38 

In  May,  1779,  Air.  Jefferson  prepared  for  the  considera 
tion  of  the  general  assembly  of  Virginia  a  bill  defining  her 
citizenship.  It  provided  that  "all  white  persons  born  within 
the  territory  of  this  State,"  &c.,  and  certain  white  foreigners, 
only,  could  or  should  be  her  citizens;  and  "that  the  free  white 
inhabitants  of  all  of  the  States,  parties  to  the  American  con 
federacy,  paupers,  vagabonds  and  fugitives  from  justLce  ex- 
cepted,  shall  be  entitled  to  all  rights,  privileges  and  immunities 
of  free  citizens  in  this  commonwealth,  and  shall  have  free 
egress  and  regress  to  and  from  the  same,  and  shall  enjoy  there 
in  all  the  privileges  of  trade  and  commerce,  subject  to  the  same 

37  Illinois   Historical   Collections,    v.    i,    192. 

38  Ib.   203,   9   Henning,   Statutes   of  Virginia,    552. 


72  LEGAL  AND  HISTORICAL  STATUS 

duties,  impositions  and  restrictions  as  citizens  of  this  Common 
wealth.1'39 

At  the  time  of  the  passage  of  this  law,  Jefferson,  its  au 
thor,  was  just  out  of  the  National  Congress,  having  resigned 
his  seat  in  that  body  to  take  one  in  the  general  assembly 
of  his  own  State.  When  the  bill  passed  he  had  retired  from 
the  latter  body  to  take  other  positions  of  trust,  and  the  bill 
had  gone  through  under  the  patronage  of  such  men  as  George 
Mason,  who  championed  it  warmly.  No  two  men  in  America 
were  better  able  to  know  or  more  honest  to  declare  who  were 
the  citizen  "parties  to  the  American  Confederacy."40 

Outside  of  the  judiciary  and  legislatures,  Northern  states 
men  and  lawyers  heel  for  many  years  gone  entirely  as  far  as 
did  the  opinion  as  Chief  Justice  Taney  worded  it.  An  instance 
of  this  class  of  writing  is  furnished  by.  John  F.  Denny,  of  the 
Chambersburg,  Pennsylvania,  bar.  About  1834,  he  published 
a  pamphlet,  "An  Enquiry  into  the  Political  Grade  of  the  free 
Colored  population  under  the  Constitution  of  the  United 
States."  Much  as  did  Taney,  he  reviews  the  degraded  con 
dition  of  free  negroes,  points  out  that  no  State  treated  them 
as  the  political  equals  of  the  whites  and  then  says :  "Can  it  be 
that  the  Constitution  binds  so  loathsome  an  excrescence  to 
the  vitals  of  any  State?  If  so,  that  charter  has  certainly  failed 
to  secure  some  of  the  chief  benefits  for  which  it  was  formed 
.  .  .  The  term  citizen  is  nowhere  defined  in  the  Constitution; 
it  was  employed  by  the  convention  as  a  word  of  known  and 
established  meaning — descriptive  of  all  who  are  capable  of  citi 
zenship  in  all  of  the  States,  with  a  due  regard  to  the  local 
qualifications  in  each.  They  were  viewed  as  an  addition  to  the 
property  of  the  State,  but  never  as  an  effective  accession  to  its 
numbers" 

Now,  from  such  legislation,  in  these  judicial  decisions,  from 
such  official  opinions,  and  from  the  writings  of  distinguished 
jurists  and  statesmen,  from  practical  constructions  outside  of 


39  10    Henning,   131. 

40  Washington's   Jefferson's1   Compl.    Works,    v.    i,   40.      See    also    Att'y-Gen.    Wirt's 
opinion,     i     Opps.    Att'ys-Gen.    U.     S.     507. 


OF    THE    DRED    SCOTT     DECISION  73 

the   judiciary   begun    before    the    Constitution,    contemporary 
with  it,  and  continued  through  the  years  down  to  the  amend 
ments  of  the  Constitution  since  the  war  between  the  States,  — 
we  get  the  meaning  of  the  word  citizen.      Nothing  in   our 
history  refutes  this  great  volume  of  evidence;  while  even  much 
more,    merely   cumulative,   might   be   adduced   to   prove   that 
Taney  and  the  majority  were  correct  in  holding  that  negroes 
of  pure  African  blood,  whose  ancestors  had  been  American 
slaves,  were  not  such  citizens  as  were  meant  when  our  Con 
stitution   gives   United    States   courts   jurisdiction   over   suits 
between  citizens  of  different  States.     Too,  this  evidence  proves 
that  he  and  the   court  were  again  right   in  holding  that  at 
the  time  of  Scott's  suit  his  admission  that  his  ancestors  were 
slaves,  that  he  was  a  negro  of  pure  African  blood,  and  that 
being  in  [Missouri,  a  slave  State,  raised  against  him  the  pre 
sumption  that  he  had  been  born  and  continued  to  be  a  slave. 
That  the  majority  of  the  court,  concurring  in  the  opinion 
as   written  by  Taney,    in  placing   itself  upon  the   legal   pre 
sumption  stood  upon  the  law,  Mr.  Justice  Curtis  himself  had 
furnished  the  clearest  precedent.     It  is  strange  that  he  forgot 
it  when  he  came  to  decide  this  case.     In  1851  while  out  on 
his  Federal  circuit,  sitting  in  Massachusetts,  in  the  case  of  the 
United  States  vs.  Morris,  involving  the  determination  as  to  the 
slavery  of  the  person  on  trial,  he  said:  "Suppose  the  govern 
ment  were  to  attempt  to  trace  the  pedigree  of  this  man  back 
to  1/85.     The  first  step  would  be  to  show,  by  persons  who 
knew  them,  that  some  person  spoke  of  and  treated  as  her  son, 
and  that  he  spoke  of  and  treated  her  as  his  mother,  or  that  he 
was  reputed  among  those  nearly  connected  to  be  her  son,  and 
thus  go  back  to  some  maternal  ancestor  in  1785;  and,  having 
arrived  at  that  point,  the  next  step  would  be  to  prove  that  that 
ancestor  was  a  slave;  and  I  suppose  that  it  would  hardly  be 
doubted  that  this  last  could  be  proved  by  showing  that  she  had 
marks  of  African  descent,  and  was  bought  and  sold  as  a  slave, 
and  held  as  such  all  her  lifetime.'"41 


Curtis,   C.    C.   R.,   46. 


74  LEGAL  AND  HISTORICAL  STATUS 

The  presumption  which  Judge  Curtis  admitted  and  en 
forced  when  sitting  in  Massachusetts,  he  denied  and  refused  to 
enforce  as  to  this  case  from  Missouri,  a  slave  State;  and,  be 
ing  a  State  where  slave  labor  was  recognized  by  law,  a  State 
where  the  presumption  was  doubly  applicable  and  in  which 
and  as  to  which  it  had  never  been  questioned  until  the  principles 
of  the  Republican  party  were  being  crushed  into  powder  by 
the  logic  of  Taney. 


D  R  ED     SC  OTT 

Original    Oil    Painting    Owned    by    the 
Missouri    Historical    Society 


V. 

SCOTT  A  SLAVE  BY  ILLINOIS  LAW. 

« 

\Yith  the  judgment  that  Scott  was  not  such  a  citizen  of 
Missouri,  upon  the  facts  set  out  in  the  plea  to  the  jurisdiction 
of  the  trial  court,  as  was  entitled  to  sue  in  a  Federal  court, 
the  Northern  free-soil  or  Free-State  party  could  not  have  found 
fault  without  the  most  complete  stultification.  That  the  negro, 
the  free  negro  regardless  of  ancestral  conditions,  was  not  a 
citizen  in  the  sense  in  which  that  word  is  used  in  the  Consti 
tution  of  the  United  States,  had  been  the  doctrine  and  practice 
of  the  North  since  the  earliest  days.  No  matter  what  name 
the  anti-negro  Northern  movement  assumed,  that  persist 
ently  practical  construction  of  the  Constitution  was  the  center 
about  which  all  other  questions  were  clustered.  The  Free-State 
party  rested  upon  it  as  chief  corner  stone.  Men  of  means 
and  ability  of  the  North  led  the  ranks  of  that  party  and  in 
1855  to  1857  sent  hordes  of  emigrants  to  settle  Kansas  with 
white  people  only.  Backed  by  the  powerful  capital  of  New 
England,  abetted  by  dangerous  numbers  of  intelligent  and  in 
fluential  Northern  men,  these  emigrants  set  up  a  "free  State" 
resting  its  chief  claim  upon  the  exclusion  of  the  free  negro, 
though  born  free;  and  to  maintain  this  construction  of  the 
Federal  Constitution,  with  guns  supplied  from  the  North,  they 
waged  a  literal  bloody  rebellion  against  the  United  States.1 

Experience  in  Kansas  emphasized  more  than  ever  the 
advantage  the  North  would  enjoy  could  the  Federal  Govern 
ment  be  brought  again,  as  it  had  done  in  the  enactment  of 
the  pro-Northern  interdict  of  the  Missouri  Compromise 


1  See   Northern   Rebellion  and   Southern   Secession. 

75 


y  LEGAL  AND  HISTORICAL  STATUS 

law,  to  take  the  Northern  emigrant  under  paternal  guardian 
ship.  The  advantage  of  this  class  legislation  was  pointed  out 
by  Judge  McLean  in  a  confidential  letter  to  a  friend,  written 
November  2,  1855.  In  the  same  communication  he  mentioned 
that  the  Dred  Scott  Case  would  be  before  the  Supreme  Court 
"next  winter,"  saying  that  that  court  had  decided  "that  slav 
ery  exists  by  virtue  of  the  municipal  law,  and  is  local.  The 
Constitution  gives  Congress  no  power  to  institute  slavery; 
then  there  can  be  no  slavery  in  the  Territories ;  for  there  is  no 
power  but  Congress  which  can  legislate  for  the  Territories. 
...  I  write  to  you  in  confidence.  ...  It  is  better  that  my 
opinions  should  find  their  way  to  the  public  from  the  bench."5 
McLean  was  perhaps  as  able  a  politician  as  he  was  a  judge. 
At  the  Republican  national  convention  in  Philadelphia,  June 
17,  1856,  he  received  196  votes  for  the  Presidential  nomination, 
and  Stanwood  says  that  he  was  regarded  as  a  strong  candidate, 
Fremont,  who  was  nominated,  having  some  difficulty  to  over 
come  the  McLean  influence.3  Defeat  seemed  to  indicate  Mc 
Lean's  better  politics ;  and,  abandoning  the  position  "that  the 
Constitution  confers  upon  Congress  sovereign  powers  over 
the  Territories,"  the  anti-Democrats  took  the  new  cue.  Rallying 
yet  more  strongly  to  the  banner  of  the  Republican  party,  by 
1859,  its  standard  in  the  hands  of  Lincoln,  the  anti-negro 
North  with  which  the  fanatical  abolitionists  had  largely  affil 
iated  jeopardized  its  right  to  existence  as  a  political  power, 
though  expressly  declaiming  that  slavery  in  the  South  by  the 
Federal  Government  should  be  made  express  and  irrevocable, 
by  adopting  as  its  cardinal  doctrine  the  claim  that  the  Consti 
tution  required  the  Federal  Government  to  prohibit  at  all 
times  slavery  in  Territories.  At  the  same  time  there  was  no 
abandonment  of  the  position  that,  as  Judge  McLean  said  in 
his  dissenting  opinion :  "If  Congress  should  deem  slaves  or 
free  colored  persons  injurious  to  the  population  of  a  free 
Territory,  as  conducing  to  lessen  the  value  of  public  lands, 

a  Bibliotheca,    Oct.,    1899,    378-9. 

3  Stanwood,     A     Hist,     of     the     Presidency,     271. 


OF    THE    DRED    SCOTT    DECISION  77 

or  on  any  other  ground  connected  with  the  public  interest, 
they  have  the  power  to  prohibit  them  from  becoming  settlers 
in  it."4 

Hence  when  the  court  passed  from  the  question  of  citizen 
ship  as  that  question  was  presented  by  the  special  plea,  and 
decided  the  other  questions  that  were  presented  by  the  record 
and  which  grew  out  of  the  facts  upon  which  Scott  relied  for 
sustaining  his  claim  to  freedom,  the  Republican  party  found 
itself  throttled  by  the  greatest  arm  of  the  Federal  Government; 
and  all  factions  of  the  anti-negro  party  saw  their  greatest  hope 
shattered  by  the  very  power  that  they  had  furnished  the  money 
to  reach  in  this  case.  So  both  the  anti-free  negro  people  and 
the  anti-slavery  fanatics  lost  more  in  the  decision  of  the  court 
upon  the  facts  of  Scott's  case  as  admitted  at  the  trial,  and 
certified  in  the  record  before  the  Supreme  Court,  than  they 
had  gained  in  the  decision  upon  the  question  of  citizenship 
as  it  was  presented  in  the  special  plea.  Smarting  under  the 
sting  of  defeat,  burning  with  the  keenest  disappointment,  they 
plunged  madly  and  inconsistently  into  a  repudiation  of  each 
decision  upon  which  the  final  judgment  of  the  majority  of  the 
court  rested.  Driven  to  the  wall  by  the  irrefutable  logic  of 
Chief  Justice  Taney  and  the  majority  of  the  Supreme  Court, 
rebellion  hissed  throughout  the  North  and  sophistry  and  mis 
representation  were  seized  and  weilded  as  the  weapons  with 
which  to  kindle  popular  indignation  and  to  divert  historical 
truths. 

Scott,  a  legal  slave  under  the  Missouri  law,  was  by  his 
master,  Doctor  Emerson,  carried  to  Rock  Island,  a  military 
post  in  Illinois,  and  there  held  in  slavery  for  about  two  years 
and  finally  returned  to  Missouri  as  a  slave.  While  in  Illinois 
the  master  was  a  sojourner,  in  the  service  of  the  Federal  army, 
and  liable  to  recall  at  a  moment's  notice.  Perhaps  the  belief 
that  Scott  was  on  free-soil  while  thus  in  Illinois,  has  had  as 
much  to  do  with  fostering  the  feeling  that  the  Supreme  Court 
lind  done  him  and  the  free  labor  States  an  injustice  and  had 


Howard,    543. 


78  LEGAL  AND  HISTORICAL  STATUS 

pronounced  a  principle  that  would  respread  slavery,  as  any 
other  one  view  of  this  great  case.  Some  even  yet  assert  that 
at  that  time  Illinois  was  "doubly  protected  against  slavery."5 
Hence  in  the  interest  of  history  a  review  of  the  Illinois  law 
upon  this  question  is  here  presented. 

We :  find  no  examination  of  the  Illinois  law  upon  this 
point  in  the  opinion  of  the  court,  because  of  the  fact  that  the 
Supreme  Court  affirmed  the  lower  State  and  Federal  courts  in 
the  view  that  Scott,  having  been  returned  to  Missouri  as  a 
slave,  could  not  in  that  State  enforce  any  status  which  must 
depend  upon  the  law  of  another  State.  This  was  placed  upon 
the  well  recognized  ground  that  any  law  of  Illinois  that  sought 
to  destroy  Scott's  slave  status  existing  under  the  laws  of 
Missouri,  was  penal  in  its  nature,  and  that  no  State  would 
enforce  penal  laws  of  any  other  place  in  conflict  with  its  own 
laws.  It  is  settled  that  this  principle  is  applicable  between  the 
States.6  Too,  as  also  pointed  out  by  Judge  Nelson  in  his 
concurring  remarks,  it  was  an  established  principle  that  even 
had  Scott's  status  been  that  of  a  freeman  while  in  Illinois, 
having  been  returned  to  Missouri  and  having  brought  suit 
there,  slavery  being  recognized  by  her  laws,  the  slave  status 
certainly  redintegrated.  Nelson  sustains  this  latter  ground 
by  showing  that,  contrary  to  the  usual  belief,  a  slave,  though 
regarded,  under  Lord  Stowell's  famous  decision,  as  free  while 
in  England,  yet  as  Lord  Mansfield  of  England  held  later  in 
the  case  of  the  slave  Grace,  "on  his  return  to  his  own  country, 
the  slave  resumed  his  original  character  of  slave."  With 
this  view,  undoubtedly  the  settled  Federal  law,7  Nelson  shows 
Northern  judges  were  in  accord,  quoting  Story:  "In  my  na 
tive  State  (Massachusetts),  the  state  of  slavery  is  not  legal; 
and  yet,  if  a  slave  should  come  hither,  and  afterwards  return 
to  his  own  home,  \ve  would  certainly  think  that  the  local  law 


\5.Hill,    Decisive    Battles    of    the    Law,    247. 

8  Wheaton's     Int.     Law     (8th    Ed.),    sees.     113,     121;     Wis.     vs.     Pelican    Ins.     Co., 
127    U.    S.    290. 

7  The     Antelope,     10     Wheaton,      120;     2     Dodson     (England),     250. 


OF    THE    DRED    SCOTT    DECISION  79 

attached  upon  him,  and  that  his  servile  character  would  be 
redintegrated."8  Notwithstanding  Judge  McLean's  claim,9  the 
Southern  States  sustained  this  doctrine  in  all  cases  such  as 
Scott's;  and  the  cases  cited  by  McLean  rest  upon  facts  in  no 
true  sense  analogous  to  those  in  Scott's  case.10 

But  as  a  question  of  history,  was  Scott  really  entitled  to 
his  freedom  under  and  by  virtue  of  the  laws  of  Illinois?  Did 
the  Illinois  laws  impress  upon  him  the  condition  and  status 
of  a  freeman? 

September  17,  1807,  the  Territory  of  Indiana,  of  which 
Illinois  was  then  a  constituent  part,  passed  the  indenture  and 
registration  law  creating  absolute  slavery  except  its  termina 
tion  before  the  negro's  old  age.  December,  13,  1812,  Illinois 
having  been  made  an  independent  Territory,  •  her  legislature 
continued  the  force  and  operation  of  the  indenture  and  regis 
tration  slave  law.  There  was  no  further  legislation  on  the 
matter  while  she  remained  a  Territory;  and  in  the  constitu 
tion  of  1818,  under  which  she  was  admitted  a  State,  she  and 
Congress  mutually  confirmed  the  indenture  law  and  the  slav 
ery  then  existing  in  conformity  thereto  and  by  virtue  thereof. 
That  constitution  apparently  further  provided  that  thereafter 
there  should  never  be  involuntary  servitude  in  that  State — 
the  indentured  and  registered  slaves  being  intentionally  un 
touched  by  the  prohibition.  On  its  face  this  looks  like  Illinois 
was  preparing  to  encourage  negro  freedom, — but  watch ! 

As  a  State  Illinois  began  her  anti-negro  and  pro-slavery 
laws  in  1819.  On  March  30  of  that  year  an  act  of  her  legis 
lature  was  approved  and  went  into  effect  providing:  "That 
from  and  after  the  passage  of  this  act  no  black  or  mulatto 
person  shall  be  permitted  to  settle  or  reside  in  this  State,  unless 
he  or  she  shall  first  produce  a  certificate  signed  by  some  judge 
or  some  clerk  of  some  court  in  the  United  States,  of  his  or  her 


8  19  Howard,  467,  citing  Story,  Confl.  of  Laws,  396  a;  2  Kent's  Com.  258  n; 
Chief  Justice  Shaw  of  Massachusetts  in  18  Pick.  193;  i  Life  of  Story,  552,  558. 

'  19    Howard,    558. 

10See  Guillemette  vs.  Harper,  (S.  C.  1850);  La.  Acts,  May  30,  1846;  Scott 
vs.  Emerson,  15  Mo.  576;  Com.  vs.  Pleasants,  10  Leigh,  732;  Billy  vs.  Horton, 
5  Leigh,  667. 


8O  LEGAL  AND  HISTORICAL  STATUS 

actual  freedom ;  which  certificate  shall  have  the  seal  of  such 
court  affixed  to  it." 

And  further :  "That  it  shall  not  be  lawful  for  any  person 
or  persons  to  bring  into  this  State,  after  the  passage  of  this 
act,  any  negro  or  mulatto,  who  shall  be  a  slave  or  held  to  ser 
vice  at  the  time,  for  the  purpose  of  emancipating  or  setting 
at  liberty  such  negro  or  mulatto,"  etc. 

And  again :  All  negroes,  "slaves  and  persons  held  to 
service  excepted,  residing  in  this  State  at  the  passage  of  this 
act,"  were  required  to  register  themselves  together  with  the 
evidence  of  their  freedom. 

And  the  act  further  provided  that  no  person  could  employ 
or  hire  any  negro  or  mulatto  not  having  the  required  certifi 
cate;  and  that  slaves  guilty  of  misconduct  be  punished  by 
stripes.  Contracts  between  master  and  servant  were  declared 
void ;  and  it  was  provided  that  in  cases  of  penal  laws  where 
free  white  persons  were  punishable  by  fine,  slaves  were  to  be 
punished  by  whipping  "after  the  rate  of  twenty  lashes  for 
every  $8."  Negroes  ten  miles  from  the  tenement  of  their 
master  were  subject  to  stripes,  not  exceeding  thirty-five,  such 
persons  not  having  been  sent  by  the  master.  Negro  slaves  be 
ing  on  the  plantation  or  in  the  tenement  of  another  than  the 
master,  not  being  sent  on  lawful  business,  were  liable  to  re 
ceive  "ten  lashes  on  his  or  her  bare  back."  No  person  could 
permit  slaves  to  gather  on  his  premises  to  the  number  of  three 
or  more  "for  the  purpose  of  dancing  or  reveling  either  by  day 
or  night."  Slaves  so  assembling  were  punishable  by  thirty- 
nine  stripes  "on  his  or  her  bare  back." 

January  17,  1(829,  this  law  was  supplemented  by  an  act 
which  provided  that  negroes  or  mulattoes  coming  into  the 
State  and  not  having  the  required  certificate  of  freedom  should 
be  "deemed  runaway  slaves  or  servants,"  be  apprehended  and, 
if  not  claimed  by  some  owner,  be  hired  out  by  the  sheriff  "for 
the  best  price  he  can  get"  for  a  period  of  one  year;  and  then, 
if  no  owner  claimed  such  negro,  the  sheriff  should  give  a  certi 
ficate  of  the  facts,  and  upon  presentation  of  that  certificate 


OF    THE    DRED    SCOTT    DECISION  8l 

to  the  circuit  court,  that  court  could  issue  a  certificate,  where 
upon  such  negro  should  be  deemed  a  free  person  unless  he 
should  "be  lawfully  claimed  by  the  owner  or  owners  there 
after."  This  law  further  provided  that  no  negro,  "the  proper 
ty  of  any  citizen  of  the  United  States,  residing  without  the 
State,"  could  institute  in  the  court  of  Illinois  a  suit  for  free 
dom,  and  required  the  court  to  dismiss  such  action  should  it 
discover  one  pending. 

March  i,  1833,  an  act  of  the  legislature  exempted  persons 
from  the  penalty  imposed  by  that  section  in  the  law  of  1819 
which  forbade  the  bringing  of  negroes  or  mulattoes  to  the 
State  for  the  purpose  of  emancipating  or  setting  them  free, 
on  condition  that  such  persons  having  incurred  the  penalty 
of  that  law  should  before  judgment  against  them  give  the 
bond  required,  etc.,  and  pay  the  costs  of  suit.  But  as  this  was 
specifically  applied  to  the  cases  that  had  arisen  under  the  law 
of  1819,  it  did  not  affect  the  law  of  Feb.  I,  1831,  which  pro 
vided  :  "That  hereafter  no  black  or  mulatto  person  shall  be 
permitted  to  come  into  and  reside  in  this  State,  until  such  per 
son"  shall  have  presented  his  certificate  of  freedom  and  have 
given  bond  with  security  as  provided  by  the  act  of  January 
17,  1829.  And  further:  "Any  person  who  shall  hereafter 
bring  into  this  State  any  black  or  mulatto  person,  in  order  to 
free  him  or  her  from  slavery,  or  shall  directly  or  indirectly 
bring  into  this  State  or  aid  and  assist  any  person  in  bringing 
such  black  or  mulatto  person  to  settle  or  reside  therein,  shall 
be  fined  $100."  This  was  the  law,  as  well  as  the  laws  regulating 
slaves,  providing  for  stripes  on  their  bare  backs,  etc.,  during 
the  time  Scott  was  in  Illinois, — and,  in  fact,  until  long  after 
he  had  gone  from  the  State.11 

Xow  when  we  turn  to  the  adjudications  of  the  highest 
court  of  Illinois  for  the  purpose  of  ascertaining  the  con 
struction  put  upon  these  various  anti-negro  regulations,  we  find 
them  not  only  sustained  by  the  court  but  the  admission  that 


11  Laws   of    1833,   457   to  465;  496;    Acts    1831,    101. 

The  next  regulation  upon  the  subject  was  the  act  of  Feb.  19,  1841,  which  applied 

only  to  negroes  who  were  born  in  the  State  (Acts  1841,  189.),  and  provided  no 

mitigation  of  the  hars'h  rules  of  the  earlier  laws. 


82  LEGAL  AND  HISTORICAL  STATUS 

the  purpose  of  such  laws  "may  have  been,  and  most  likely  was, 
to  prevent  the  influx  of  that  most  unacceptable  population," 
as  the  court  said  in  Eells  vs.  The  People,  in  1843;  and  that, 
as  the  court  went  on  to  point  out,  "it  matters  not  what  the 
object  was,  the  exercise  of  the  power  was  within  the  legiti 
mate  scope  of  the  Illinois  authority."  Too,  we  find  that  the 
court  sustained  along  with  the  local  slavery  and  anti-negro 
regulations  the  right  of  slave  holders  accompanied  by  their 
slave  from  other  States  to  hold  them  as  property  while  in  the 
State  with  no  intention  of  permanent  residence,  as  Mr.  Justice 
Lockwood  pointed  out  in  the  same  case.12 

No\v  put  your  finger  upon  the  provision  of  the  State 
law  as  it  was  either  in  letter  or  spirit  and  as  it  was  enforced 
by  the  highest  courts  of  Illinois,  under  which  Scott  caul d  have 
claimed  freedom^  He  could  .not- hav-e..been._.sold,.fQr_pne  year 
for  whatever  price  the  sheriff  who  apprehended  him  might 
have  been  able  to  have  obtained,  for  he  wa^flQJLaJugitive  slave. 
That  section  of  the  law  providing  for  the  sale  of  negroes  not 
having  the  required  certificate  was  aimed  at  fugitives,  and  had 
in  view,  so  the  State  supreme  court  in  Thornton's  case  in  1849 
said, '"a  proper  regard  to  the  rights  of  the  citizens  of  other 
States"  claiming  property  in  such  negroes.  However,  in  the 
same  case,  basing  its  decision  on  the  action  of  the  Supreme 
Court  of  the  United  States  in  the  famous  case  of  Prigg  vs. 
Pennsylvania,  the  highest  court  of  Illinois  held  that  that  one 
section  and  provision  of .  the  law  was  wheUy-ifloperati ve.  S i nee 
the  Supreme  Court  of  the  United  States,  upon  a  question  of 
the  construction  of  a  State  law,  always  follows  the  highest 
court  of  the  State,  and  since  this  decision  of  the  State  court 
was  based  upon  the  action  of  the  Supreme  Court,  ha^L -Scott., 
undergone  the  penalty  by.  which  alone  a  negro  not  having  the 
evidence  of  his  freedom  could  purchase  an  uncertain  right 
to  remain  in  the  State,  it  could  not  have  availed  him,  having 
been  decided  inoperative.  However,  as  Scott  was  not  a  fugi 
tive;  as  no  attempt  had  been  made  to  apply  that  provision  of 

ia  4     Scammon,     513,     517. 


' 


OF    THE    DRED    SCOTT    DECISION  83 

the  law;  and  as  the  section  authorizing  such  sale  of  fugitives 
and  negroes  not  having  the  required  certificate  of  freedom,  was 
wholly  inoperative,  was  the  situation  altered  because  of  the 
fact  that  Scott  was  in  the  State  by  the  will  of  the  master  who 
had  carried  him  there  for  the  purpose  of  holding  him  in  slav 
ery  while  upon  temporary  business  in  connection  with  the 
United  States  army,  and  with  no  intention  of  setting  the  negro 
free? 

The  answer  must  depend  upon  whether  or  not  the  State 
in  order  to  punish  the  master  in  such  a  case  could  render  inop 
erative  the  law's  provisions  forbidding  emancipation  by  mas 
ters.  That  we  may  see  the  logic  of  the  situation,  notice  again 
the  settled  law  as  laid  down  by  the  supreme  court  of  the 
State  in  1851  in  the  case  of  Owens  vs.  The  People.13  This 
was  an  action  instituted  by  the  State  to  recover  the  penalty 
of  a  bond  given  by  a  negro  who  had  come  from  another  State 
for  the  purpose  of  residing  in  Illinois,  "the  conditions  of  which 
were  that  he  would  behave  himself  in  a  decent  manner,  and 
act  as  the  law  requires  toward  all  people  in  this  State,  and 
shall  not  become  a  county  charge,  then  and  in  that  case  this 
bond  to  be  void;  otherwise  to  remain  in  full  force  and  virtue." 
Hobbs,  the  negro,  settled  down,  grew  old  and  infirm,  and  the 
county  in  which  he  lived  found  itself  compelled  to  expend  the 
sum  of  thirty-seven  dollars  ''for  his  support,  nursing  and  main 
tenance.''  It  was  to  reimburse  itself  for  this  outlay  that  suit 
was  brought  against  the  negro  and  the  woman  who  was  the 
security  on  the  bond.  The  case,  taken  from  the  Marion  cir 
cuit  court  on  a  change  of  venue,  was  tried  in  the  circuit  court 
of  Williamson  county,  and  judgment  given  against  the  negro 
and  the  surety  for  the  sum  of  one  thousand  dollars,  the  full 
penalty  of  the  bond.  Thereupon  the  defendant  appealed  to  the 
supreme  court  of  the  State.  Announcing  the  settled  law  that 
court  said  : 

"The    statute    in    reference    to    negroes    and    mulattoes14 


13  13    Illinois    59. 

"  Rev.    Stats,   ch.    75. 


84  LEGAL  AND  HISTORICAL  STATUS 

was  manifestly  designed  to  discourage  the  settlement  of  ne 
groes  within  this  State.  The  eighth  section  of  that  act  in 
flicts  a  penalty  on  any  person  bringing  a  black  or  mulatto 
person  into  the  State,  in% order  to  fre€.Mm_frorri._.$lavery.  The 
fifth  section  provides  for  arresting,  imprisoning  and  hiring 
out  any  such  person  found  in  the  State,  not  having  a  certifi 
cate  of  his  freedom;  and,  although  this  section  has  been  held 
to  be  invalid,  in  the  case  of  Thornton,  1 1  Illinois,  332,  by 
reason  of  its  conflict  with  the  exclusive  jurisdiction  of  Con 
gress  over  the  same  subject,  still  it  is  proper  to  refer  to  it, 
as  indicating  the  design  of  the  legislature  in  enacting  the  other 
sections  of  the  same  law.  The  first  section  declares  that  'no 
black  or  mulatto  person  shall  be  permitted  to  reside  in  this 
State,  until  such  person  shall  produce  to  the  county  commis 
sioners'  court,  where  he  or  she  is  desirous  of  settling,  a  cer 
tificate  of  his  or  her  freedom,  -which  certificate  shall  be  duly 
authenticated  in  the  same  manner  that  is  required  to  be  done 
in  cases  arising  under  the  acts  and  judicial  proceedings- of  other 
States.  And  until  such  person  shall  have  given  bonds,  with 
sufficient  security  to  the  people  of  this  State,  for  the  use  of 
the  proper  county,  in  the  penal  sum  of  one  thousand  dollars, 
conditioned  that  such  person  will  not,  at  any  time,  become  a 
charge  to  said  county,  or  any  other  .county  of  this  State,  as 
a  poor  person,  and  that  such  person  shall,  at  all  times,  demean 
himself  or  herself  in  strict  conformity  with  the  laws  of  this 
State.' 

"The  legislature  never  intended  this  State,"  the  court 
goes  on  to  say,  "to  become  a  rendezvous  for  negroes  and  mulat- 
toes  of  every  description,  who  could  give  the  required  bond, 
but  limited  the  privilege  of  residing  here  to  such  only  as 
could  furnish  the  evidence  of  their  freedom  and  then  give 
bond  and  security."15 

Now  notice :  If  presence  or  residence  in  Illinois  could  have 
imparted  to  a -...slave  the  status  of  a  freeman,  it  would  have 
opened  the  most  effective  way  for  the  evasion  of  the  law  for- 

15  ib.  63,  64. 


OF    THE    DRED    SCOTT    DECISION  85 

bidding  a  person  to  bring  a  negro  to  the  State  for  the  purpose 
6f  setting  him  free.  "To  have  declared  Scott  free  because 
brought  to  Illinois  and  held  in  slavery,  would  have  done  for 
him  what  the  master  could  not  do,  and  would  have  exempted 
the  master  from  liability  to  fine  had  he  desired  to  free  his 
slave.  The  penalty  of  the  Illinois  law  was  directed  against 
emancipating  a  slave,  and  not  against  holding  a  negro  in 
slavery  in  that  State.  The  people  of  Illinois  stood  aghast 
!ibT~at  the  slave  but  at  the  free  negro  in  their  midst.  Her 
citizens  owned  indentured  slaves.  Hence,  Scott  could  not  have 
been  by  ajgLll3ilLOJ3-£Qii^  free  by 

reason  of  having  been  held  in  slavery  in  Illinois  because  such 
would  have  contravened Jfe 

Had  it  been  held  that  Scott's  master  could  not  hold  him  there 
in  slavery,  he  must  then,  as  the  law  read  and  as  the  courts 
enforced  it,  have  been  ejected  from  the  State  on  the  ground 
that  he  did  not  have  a  certificate  of  his  freedom,  "duly  authen 
ticated  in  the  same  manner  as  that  required  to  be  done  in  cases 
arising  under  the  acts  and  judicial  proceedings  of  other 
States,"  which  would  have  been  irrefutible  proof  that  such  a 
negro  was  yet  a  slave  under  the  laws  of  the  other  State.  Too, 
since  it  was  unquestionable  that  Scott  had  no  certificate,  unless' 
tolerated  merely  as  a  slave  he  was  a  trespasser  while  in  Illinois, 
and  to  have  allowed  him  any  benefit  as  against  his  master  on 
account  of  that  stay,  would  have  been  permitting  him  the 
advantage  of  his  own  wrong,  which  is  always  abhorrent  to  all 
law.  In  eliminating  a  negro  Illinois  repudiated  in  the  most 
emphatic  manner  his  right  to  her  protection,  and  gave  express 
acknowledgment  that  he  was  the  subject  of  some  other  State. 
Being  the  subject  of  some  other  power,  and  not  permitted  the 
privilege  of  her  jurisdiction,  Illinois  could  not  invest  him 
with  a  right. 

Illinois  did  not  permit  the  right  of  freedom  as  between  the 
negro  and  the  State  to  add  free  negroes  to  her  population. 
Both  the  letter  of  the  law  and  the  presumptions  upon  which 
the  courts  acted  in  its  enforcement  were  in  favor  of  the  slav- 


86  LEGAL  AND  HISTORICAL  STATUS 

ery  of  every  person  of  negro  descent.  However,  there  are 
a  few  cases  in  her  court  reports  that  might  mislead  some,  for 
in  them  the  obiter  dictum  that  all  men,  even  negroes,  are 
presumed  to  be  free,  is  found. 

One  of  the  most  peculiar  of  these  decisions  was  rendered 
by  that  court  in  November,  1857.  Its  obiter  dicta,  in  the  face 
of  the  facts  and  the  laws  of  the  State,  cannot  fail  to  strike 
even  the  casual  reader.  In  this  case  a  slave  escaping  from  his 
master,  who  held  him  under  the  Missouri  law,  was  taken  on 
board  the  Illinois  Central  Railroad  at  Cairo  and  carried  to 
Chicago.  Suit  was  instituted  in  the  Illinois  State  circuit  court 
in  1855  to  recover  the  value  of  the  fugitive  negro  and  also  for 
damages  occasioned  by  the  road  in  assisting  his  escape.  Said 
the  court :  "The  constitution  of  this  State  prohibits  negro 
slavery,  and,  therefore,  negroes  within  our  jurisdiction  are  pre 
sumed  free."10  But  that  declaration  was  to  save  the  railroad 
from  damages,  as  no  question  between  the  State  and  the  negro 
was  involved. 

As  authority  for  this  the  court  cites,  first,  Hone  vs.  Am- 
mons.17  In  that  case  a  citizen  and  resident  of  Illinois  exe- 
cuted  his  note  in  purchase  of  a  negro  represented  to  be  a  slave, 
and  who  was  at  the  time  in  the  State.  Of  the  four  judges  only 
two  concurred  in  the  opinion;  the  chief  justice  dissented  in  toto 
from  the  other  members  of  the  court.  The  only  point  upon 
which  a  majority  of  the  court  seem  to  have  agreed  was  that 
no  judgment  could  be  given  upon  "a  contract  made  in  Illinois, 
for  the  sale  of  a  person  as  a  slave.  .  .  .  The  contract  sued 
on  was  made  in  Illinois,  and  the  presumption  of  law  is,  was 
to  be  performed  in  Illinois.  A  part  of  this  contract,  the  con 
sideration  of  the  note,  was  the  sale  of  a  negro  in  Illinois,  as 
a  slave"  in  1848  or  1849.  So  the  question  as  to  whether  or 
not  the  negro,  the  consideration  of  the  note,  was  free  or  slave 
did  not  become  material  in  deciding  the  case,  most  clearly,  as 
Justice  Trumbull  showed.  There  was  no  proof  that  the  negro 

"  19    111.    44- 

l?  14    111.    29. 


OF    THE    DRED    SCOTT     DECISION  / 

was  not  born  in  Illinois,  or  that  he  had  ever  been  held  in  slavery 
in  a  slave  State,  or  that  Hone,  who  claimed  to  sell  him,  or  any 
one  else,  had  ever  exercised  "even  the  semblance  of  possession 
or  control"  in  Illinois  or  elsewhere. 

Baily  vs.  Commonwealth18  was  the  next  case  cited.  This 
case  was  heard  in  the  lower  court  in  September,  1839.  Abra 
ham  Lincoln  was  the  attorney  for  the  appellant,  and  S.  T. 
Logan  for  the  appellee.  It,  also,  was  an  action  to  recover 
the  value  of  a  note  given  in  consideration  of  a  negro  girl 
who  was  alleged  to  be  an  indentured  slave  under  the  laws  of 
Illinois;  and  the  vendor  promised  to  produce  the  papers  of 
indenture.  No  title  papers  were  ever  produced ;  and,  upon  ex 
amination,  none  could  be  found;  and  the  court  said  that  the 
presumption  was  "she  was  free,  and  not  the  subject  of  sale." 

In  Kinney  vs.  Cook,19  the  court  said  the  presumption  is 
that  "every  person  is  free,  without  regard  to  color,"  and  this 
the  court  in  1857  also  cited.  This  was  another  action  of  debt. 
A  negro  had  sued  for  wrages  which  he  claimed  to  be  due  from 
a  citizen  of  Illinois  for  whom  he  worked.  The  negro  proved 
his  services,  "without  having  adduced  any  testimony  whatever 
of  his  freedom  either  by  certificate  or  otherwise."  The  defend 
ant  relied  upon  this  failure  to  prove  freedom ;  and  the  question 
before  the  court  turned  upon  whether  or  not,  in  such  a  case, 
the  law  would  presume  the  negro  free.  Both  the  lower  and 
the  appellate  court  held  that  the  plaintiff,  the  negro,  for  the 
purpose  of  that  suit,  was  under  no  necessity  to  prove  his 
freedom. 

Now  it  will  be  observed  that  neither  case  arose  from 
the  voluntary  carrying  a  negro  to  the  State  by  a  master  from 
a  slave  State.  .Sn^^henjjie  Drerl  Srott  Case  waA..hefnrp  thf 
c°iil±L--therp  was  not  -^  ctnt^tp  nr  n  fjpnViQn  which  was  an. 
authoritative  precejdent_for  Jioldingjihat  a  negro  slave  being 
brpughTto  the  State  as  was  Scott,  would,  in  any  event,  or  for 
a n y "pi irpngf  jj] fL¥£  been  pr esjirnedjree  ;  on  the  contrary  her  bit- 


19  3    Scammon,    71. 
14  3     Scammon,    232. 


88  LEGAL  AND  HISTORICAL  STATUS 

ter  and  enforced  statutes  requiring  evidence  of  freedom  were 
most  conclusive  that  her  law  was  against  him. 

HadJScott  any  right  to  freedom  under  the  Ordinance  of 
1787-?-  Curtis  said  that  "the  Congress  of  the  Confederation 
had  no  power  to  make  such  a  compact  nor  to  act  at  all  upon 
the  subject."  So  far  as  the  Articles  of  Confederation  was 
authority,  this  is  undoubtedly  true ;  and  whether  or  not  it  had 
any  validity  on  the  ground  of  mutual  consent  of  the  States,20 
all  agree  it  had  none  after'  the  Constitution  except  as  author 
ized  by  that  instrument. 21  August  7,  1789,  Congress  acting 
under  the  Constitution,  there  being  no  other  source  of  power 
"capable  of  operating  within  that  territory  after  the  Consti 
tution  took  effect,"  affirmed  the  provisions  of  the  Ordinance 
only  in  so  far  as  Congress  had  power  to  legislate  upon  the 
subjects  regulated  therein.22  Hence,  if  the  Constitution  gave 
Congress  no  power  to  destroy  slave  property  in  a  Territory, 
no  part  of  the  Ordinance  of  force  after  August  7,  1789,  con 
tained  an  attempt  at  such  destruction,  words  in  the  Ordinance, 
as  originally  drawn,  to  that  effect  being  the  merest  surplus 
age.  Territories  within  the  limits  of  the  Ordinance,  after 
the  Constitution,  beginning  with  the  slavery  law  of  the  Ter 
ritory  of  Indiana  in  i8o7,23  down  through  the  adoption  and 
reenactment  of  this  law  by  the  Territory  of  Illinois,24  treated 
the  anti-slavery  wording  of  the  Ordinance  as  a  surplusage  and 
a  nullity.  These  laws  and  this  construction  of  the  Ordinance 
were  ratified  by  Congress  and  specifically  declared  to  be  in 
conformity  with  the  principles  of  the  Ordinance,  when  Con 
gress  sanctioned  the  constitution  of  Illinois,  in  i8i8.25 

The  ordinance  was  a  territorial  regulation ;  after  the  sev 
eral  Territories  of  the  Old  Northwest  became  States,  they 


20  19  Howard,  435. 

21  19  Howard,  617. 

22  i   Stat.  at  Large,   50. 

23  Acts    Ter.     Leg.,    1807. 

24  Hayes  vs.   Borders,    (1844)    i    Gilmer   (111.),   54. 
38  Poore,   Charters  and   Consts.   446. 


OF    THE    DRED    SCOTT    DECISION  89 

altered  or  adopted  even  the  theretofore  valid  provisions  of  the 
Ordinance  as  suited  the  people.  The  validity  of  this  action 
was  sustained  by  the  Federal  courts  and  by  the  highest  court 
of  each  State  erected  within  the  original  Territory.  To  have 
given  the  anti-slavery  wording  of  the  Ordinance  full  force  in 
Illinois  while  Scott  was  in  that  State,  would  have  destroyed 
her  anti-negro  laws.  Such  a  force  not  only  was  not  but  would 
not  have  been  tolerated,  and  would  have  been  entirely  subver 
sive  of  the  reserved  rights  of  Illinois  as  guaranteed  by  the 
Constitution  of  the  United  States.  Too,  such  an  application 
of  the  Ordinance  would  have  destroyed  the  force  of  the  in 
denture  slave  law  affirmed  in  the  Illinois  constitution  and 
ratified  by  Congress,  and  no  law  of  that  State  has  been  more 
zealously  upheld  than  that  slavery  provision.26 

In  full  harmony  with  these  decisions  Judge  McLean  in 
1838  announced  the  same  principles.27  In  1843  tne  superior 
court  of  Michigan  decided:  "The  Ordinance  of  1787,  in  my 
opinion,  is  no  part  of  the  fundamental  law  of  the  State  since 
its  admission  into  the  Union.  It  was  then  superceded  by  the 
State  constitution,  and  such  parts  of  it  as  are  not  to  be  found 
in  either  the  Federal  or  State  constitutions,  were  annulled  by 
mutual  consent.  .  .  .  The  Ordinance  must  .  .  .  have  been 
drawn  with  a  view  to  the  existing  government  under  the 
Articles  of  Confederation.  If  the  Constitution  had  been  in 
operation  at  the  time,  it  can  hardly  be  supposed  that  the  Ordi 
nance  would  have  been  what  it  is;  for  a  new,  and  in  most  re 
spects,  entirely  different  state  of  things  existed  under  the 
Constitution,  from  what  existed  under  the  Articles  of  Confed 
eration."28  This  principle  by  which  the  Ordinance  was  held 
inoperative  after  Illinois  became  a  State,  was  sustained  in 
Menard  vs.  Aspasia,  decided  by  the  Supreme  Court  of  the 
United  States  in  1831,  in  an  opinion  written  by  Judge  McLean 


2ci  McKinstry    vs.    Pennoyer,    i    Scammon    (111.).    319;    Bonn    vs.    Juliet,    Ib.,    258; 
Sarah  vs.   Borders,  4   Scammon,  345,  348;   Eells  vs.   The  People,   Ib.   507. 

27  Spooner    vs.    McConnell,    i    McLean's    Repts.    343. 

28  Walker's    Mich.    Chancery    Rep.     163. 


90  LEGAL  AND  HISTORICAL  STATUS 

himself.29  In  1885  the  same  court  again  decided,  the  entire 
court  agreeing:  "The  Articles  of  Confederation  ceased  to  ex 
ist  upon  the  adoption  of  the  Federal  Constitution ;  and  the 
Ordinance  of  1787,  like  all  acts  of  Congress  for  the  govern 
ment  of  Territories,  had  no  force  in  any  State  after  its  admis 
sion  into  the  Union  under  the  Constitution."30  From  that  day 
to  this  the  principle  remains  sustained. 

Neither  the  Ordinance  of  July  13,  1787,  nor  any  law  of 
the  State  of  Illinois  converted  the  slave  status  of  Scott  into 
that  of  a  freeman.  There  being  no  other  possible  source  of 
freedom,  while  in  Illinois  Scott  remained  a  slave. 


29  5   Peters,    516. 

30  Van    Brocklin    vs.    Tennessee,    117    U.    S.    159;    citing   Permoli   vs-.    First    Munic. 
of   N  O.,  3   Howard,    589,   610;    Strader  vs'.    Graham,    10   Howard,   82. 


VI. 
OBITER  DICTA  AND  THE  OPINION. 

That  some  part  of  the  opinion  of  the  court  is  an  obiter 
dictum,  has  been  widely  believed  since  the  first  effort  to  find 
an  excuse  for  repudiating  the  binding  and  conclusive  force  of 
what  the  court  had  done.  "Taney  and  the  others  went  out  of 
their  way  to  deliver  a  series  of  obiter  dicta/'  is  a  statement  that 
has  long  been  the  favorite  .weapon  with  which  the  attempt  is 
made  to  defend  the  North — for  the  great  numbers  therein  of 
the  same  mind  make  it  proper  to  speak  of  it  as  a  whole — 
against  the  nullification  to  which  that  section  and  the  North 
west  largely  surrendered  when  the  court  by  its  famous  de 
cision  blasted  the  legal  hopes  of  the  movement  for  free  Terri 
tories  for  white  people  only.  It  is  believed,  as  this  representa 
tive  writer  goes  on  to  explain,  that  the  obiter  dicta  consist 
of  "personal  judgments  not  needed  or  relevant  for  the  case  in 
hand,  and  therefore  not  law."  Being  told  that  the  court  had 
rendered  judgments  not  law,  and  that  the  judges  wilfully  had 
gone  out  of  their  way  to  do  so,  the  attack  on  the  opinion  had 
the  desired  effect  and  "inflamed  the  public  wrath  immeasur 
ably  as  a  fresh  aggression  of  the  slave-power."1 

Perhaps  very -few  of  those  who  came  to  believe  that  the 
opinion  rested  upon  so  rotton  a  foundation,  understood  very 
definitely  why  or  wherein  the  dictum  is  said  to  lie.  Some  of 
those  who  led  the  assault  upon  the  court  differed  from  each 
other  as  to  what  was  the  dictum  they  professed  to  find,  or  as 
to  wherein  the  court  had  rendered  an  extra  judicial  judgment. 
It  will  be  important,  therefore,  first  to  find  to  what  part  of 

1  Encyc.  Americana,  ed.   1903,  Dred  Scott  Case. 

91 


92  LEGAL  AND  HISTORICAL  STATUS 

the  court's  opinion  it  is  claimed  that  the  obiter  dictum  is  said 
to  apply. 

To  what  it  cannot  apply  is  essential  first  to  be  seen.  Some 
times  the  histories  read  as  if  the  writers  thought  the  use  of 
references  to  familiar  history  by  Chief  Justice  Taney  in  writing 
the  court's  opinion,  constitutes  obiter  dictum.  However,  it 
must  be  remembered  that  scholars  and  lawyers  do.  not  complain 
that  his  historical  illustrations  and  references  to  legal  maxims 
are  dicta.  Writers  often  misquote  or  misinterpret  the  language 
of.  the  opinion  in  dealing  with  these  materials;  but,  as  they 
are  of  minor  importance,  no  notice  will  be  made  here  of  such 
abuses.  It  is  important,  however,  to  observe  that  Taney's 
method  of  supporting  his  conclusions  was  not  new  to  courts 
then,  and  that  it  is  yet  an  effective  and  important  factor  of 
judicial  argumentation.  An  interesting  and  recent  illustration 
of  this  is  afforded  in  the  case  of  Wilson  vs.  Shaw,  decided  by 
the  Supreme  Court  of  the  United  States  January  7,  1907.  In 
that  case,  among  other  requests,  it  was  asked  that  the  Secre 
tary  of  the  United  States  Treasury  be  restrained  from  paying 
$40,000,000  to  the  Panama  Canal  Company,  and  $10,000,000 
to  the  Republic  of  Panama,  and  from  paying  out  money  for 
the  construction  of  the  canal,  and  from  borrowing  money  for 
that  purpose  and  issuing  bonds  of  the  United  States  therefor. 
In  deciding  the  case  Mr.  Justice  Brewer,  speaking  for  the 
court,  said : 

"In  other  words  the  plaintiff  invokes  the  aid  of  the  courts 
to  stop  the  government  of  the  United  States  from  carrying 
into  execution  its  declared  purpose  of  constructing  the  Pana 
ma  Canal.  The  magnitude  of  the  plaintiff's  demand  is  some 
what  startling.  ...  A  company  chartered  under  the  laws  ot 
France  undertook  the  construction  of  a  canal  at  Panama.  This 
was  done  under  the  supervision  and  guidance  of  the  famous 
Ferdinand  de  Lesseps,  to  whom  the  world  owes  the  Suez 
Canal.  To  tell  the  story  of  all  that  was  done  in  the  construction 
of  this  canal,  prior  to  the  active  intervention  of  the  United 


OF    THE    DRED    SCOTT    DECISION  93 

States,  would  take  volumes.  It  is  enough  to  say  that  the  efforts 
of  De  Lesseps  failed."2 

Whether  or  not  the  court  were  startled  was  not  an  ele 
ment  or  an  essential  of  the  court's  decision;  that  De  Lesseps 
"failed"  was  not  required  to  be  decided,  and  was  a  question 
upon  which  others  might  hold  a  different  view.  Whether  the 
world  owes  to  him  the  Suez  Canal  had  nothing  whatever  to  do 
with  the  court's  opinion  or  judgment.  Yet  all  courts  indulge 
more  or  less  in  such  statements,  and  properly;  every  judicial 
argument  needs  its  background,  its  lines  of  perspective,  its 
shades  and  shadows,  and  courts  generally  paint  them.  How 
ever,  there  is  nothing  of  the  superfluous  or  irrelevant  in  the 
opinion  in  the  Scott  case.  Such  uses  of  history  and  illustra 
tions  drawn  from  standard  writers  do  not  constitute  obiter 
dicta;  and  they  do  not  in  the  least  impair  the  court's  opinion 
or  judgment. 

Waiving  a  discussion  of  the  question  as  to  when  or  how 
far  or  whether  any  substantial  part  of  the  people  may  assume 
to  nullify  the  actual  legal  force  of  a  decision  of  the 'highest 
court ;  without  discussing  whether  or  not  the  legislative  branch 
of  the  government  may  proceed  to  re-enact  laws  based  upon 
an  authority  declared  by  the  highest  court  to  be  beyond  the 
legislature,  let  us  observe  in  the  outset  that  it  will  not  be 
authoritatively  disputed  that  obiter  dictum  applies  to  the  es 
sential  decision  or  decisions  upon  which  the  court  rests  its 
judgment.  In  the  opinion  of  the  court  in  this  case  these  de 
cisions  upon  which  the  court,  deciding  the  case  as  a  whole, 
rested  its  judgment,  which  was  that  the  tmJ^_court_had  no 
jurisdiction^ re  three:  (i)  that  Scot^_was...npt .a  citizen  of 
Missouri,  in  the  sense  in  which  the  word  citizen  is  used  in  the 
Constitution  of  the  United  States;  (2)  that  Missouri,  under  the 
circumstances  of  the  case,  properly  refused  to  inquire  for  or  to 
enforce  any  extraterritorial  law  said  to  have  destroyed  property 
rights  already  vested  in.  Scott,  the  destruction  being  contrary 
to  the  laws  and  polity  of  Missouri;  (3)  that  being  within 


204    U.    S.   30. 


94  LEGAL  AND  HISTORICAL  STATUS 

the  jurisdiction  of  the  Missouri  Compromise  anti-slavery  law 
had  not  established  for  any  of  the  parties  before  the  court  the 
status  and  condition  of  a  free  person,  because  the  law  was 
contrary  to  the  Constitution  and  void. 

Keep  the  court  proceeding's  in  mind  together  with  the 
grounds  of  jurisdiction,  and  the  kind  of  jurisdiction  exercised 
in  this  case  by  the  Supreme  Court  of  the  United  States.  The 
importance  of  a  clear  distinction  will  warrant  a  little  repeti 
tion.  Federal  courts,  including  the  jurisdiction  of  the  cir 
cuit  court  in  which  this  case  was  tried,  being  limited  in  jur 
isdiction  in  the  sense  that  they  have  no  jurisdiction  than  that 
conferred  by  the  Constitution  and  laws  of  the  United  States, 
require  one  suing  in  them  to  show  upon  the  face  of  his  de 
claration  of  complaint  or  in  some  affirmative  manner  by  the 
pleadings  the  ground  upon  which  he  asks  the  court  to  exercise 
jurisdiction.  In  Robertson  vs.  Cease  the  Supreme  Court,  re 
peating  the  settled  rule,  said  that  "when  the  jurisdiction  de 
pends  upon  the  citizenship  of  the  parties,  such  citizenship, 
or  the  facts  which  in  legal  intendment  constitute  it,  should 
be  distinctly  and  positively  averred  in  the  pleadings,  or  they 
should  appear  affirmatively  and  in  equal  distinctness  in  other 
parts  of  the  record.''3  In  obedience  to  this  requirement  Scott, 
we  remember,  rested  alone  upon  the  ground  of  diverse  citizen 
ship ;  that  is,  that  he,  a  citizen  of  Missouri,  was  suing  Sand- 
ford,  a  citizenship  of  New  York.  On  the  trial  Sandford  filed 
what  we  call  a  plea  in  abatement ;  that  is,  he  said  that  the  suit 
should  stop  for  want  of  jurisdiction  in  the  trial  court.  His 
reason  for  saying  that  the  court  had  no  jurisdiction  for  hearing 
the  case  was  that  Dred  Scott  "is  not  a  citizen  of  the  State 
of  Missouri  as  alleged  in  his  declaration,  because  he  is  a 
negro  of  African  descent;  his  ancestors  were  of  pure  African 
blood,  and  were  brought  into  this  country  and  sold  as  negro 
slaves."  To  this  there  was  what  is  known  in  law  as  a  de 
murrer  ;  that  is,  the  facts  of  the  plea  were  admitted  while  it 
was  denied  that  their  effect  was  sufficient  to  destroy  jurisdic- 


3  97    U.    S.    646,    citing    the    earlier   leading   cases. 


OF    THE    DRED    SCOTT    DECISION  95 

tion.  This  plea  and  the  demurrer  having  been  argued,  it  al 
ways  being  absolutely  necessary  that  the  question  of  jurisdic 
tion  of  a  trial  court  be  first  determined,  the  lower  or  trial 
court  by  judgment  sustained  the  demurrer,  holding  that  it  had 
jurisdiction,  whereupon  the  case  was  heard  upon  its  merits 
and  as  a  result  of  that  hearing  another  judgment  entered. 

Now  notice  what  the  Supreme  Court  did :  It  found  all 
these  facts  in  the  record.  That  it  had  some  degree  of  appellate 
jurisdiction  over  the  work  of  the  trial  court,  there  is  no  ques 
tion  ;  and  no  one  attempted  to  dispute  this  appellate  power. 
Opening  the  record  the  court  found  the  plea  in  abatement, 
the  demurrer  thereto,  and  the  trial  court's  judgment  there 
on — a  judgment  preliminary  to  what  followed.  Now,  the 
question  is  not,  had  the  Supreme  Court  appellate  jurisdiction? 
But,  it  is  how  far,  according  to  the  recognized  rules  of  appel 
late  practice,  should  the  Supreme  Court  go  in  its  examination 
of  the  record;  and  what  questions  should  it  decide  or  omit? 
Should  it  omit  any  notice  of  the  trial  court's  judgment  of  the 
facts  of  the  plea,  and  pass  into  the  record  and  examine  the 
judgment  rendered  by  the  trial  court  on  the  questions  of 
merit?  Or  should  it  examine  and  decide  the  questions  raised 
at  each  stage  of  the  case  as  it  progressed  in  the  trial  court? 
Curtis  agreed  with  the  majority  that  the  questions  raised  by  the 
plea  were  before  the  court,  and  that  the  preliminay  judgment 
of  the  trial  court  thereon  should  be  affirmed  or  reversed, 
as  might  be  determined  proper.  That  this  was  the  correct  prac 
tice  is  certain.  As  to  the  conclusion  to  be  reached  upon  that 
plea  and  the  judgment  of  the  trial  court  thereon,  the  first 
difference  between  the  majority  and  the  dissenting  judges 
appeared. 

The  majority  held  that  the  judgment  of  the  trial  court 
upon  the  facts  of  the  plea  was  erroneous ;  that  the  facts  there 
in,  admitted  by  Scott  to  be  true,  showed  a  lack  of  jurisdiction 
in  the  trial  court  to  hear  and  determine  the  merits  of  the 
case,  because  those  facts  "disqualified  the  plaintiff  from  be 
coming  a  citizen,  in  the  sense  in  which  that  word  is  used  in 


90  LEGAL  AND  HISTORICAL  STATUS 

the  Constitution  of  the  United  States."4  So,  having  based 
his  right  to  sue  upon  the  assertion  that  he  was  a  citizen  of 
Missouri,  and  that  he  sued  a  citizen  of  New  York,  the  trial 
court  had  erred  in  trying  the  case  on  its  merits.  The  two 
dissenting  judges  held  that  the  trial  court  was  correct  in 
deciding  that  upon  the  facts  of  the  plea  it  had  jurisdiction,  and 
insisted  that  only  in  this  view  could  an  examination  of  the 
other  questions  be  justified. 

Now,  aside  from  whether  or  not  the  majority  was  correct 
in  this  conclusion  as  to  the  legal  weight  of  the  facts' set  out  in 
the  plea,  having  decided  that  the  trial  court  had  no  jurisdic 
tion  as  shown  by  those  facts,  should  the  majority  have  stopped 
at  finding  want  of  jurisdiction  in  the  trial  court  on  a  considera 
tion  of  the  plea?  There* was  yet  the  judgment  on  the  merits, 
what  should  the  appellate  court  have  done  with  it  ?  Should  it 
have  reversed  that  judgment?  Should  it  have  affirmed  that 
judgment  of  the  trial  court  on  the  merits?  Should  that  judg 
ment  have  been  ignored?  That  the  Supreme  Court,  in  exer 
cising  this  appellate  jurisdiction,  must  have  done  something 
with  the  judgment  of  the  trial  court  reached  on  a  hearing 
of  the  merits,  no  one  questioned  and  no  lawyer  will  now  ques 
tion.  Having  said  that  the  lower  court  on  the  facts  of  the 
plea  had  no  jurisdiction,  the  appellate  court  was  obliged  to 
look  at  the  judgment  of  the  trial  court  on  the  merits  to  see 
whether  or  not  it  should  be  reversed  or  affirmed.  Anyone 
can  understand  this.  As  the  California  court  correctly  said, 
the  appellate  court  "must  look  into  the  whole  record,  and 
see  if  there  be  any  errors  in  the  final  decree  rendered"  by  the 
trial  court.5  As  a  matter  of  fact  it  might  have  appeared  on 
the  trial  that,  entirely  apart  from  the  facts  of  the  plea,  the  trial 
court  had  jurisdiction.  For,  on  the  trial  the  facts  of  the  plea 
had  nothing  in  the  world  to  do  with  the  matter;  that  plea  was 
a  preliminary  step;  and,  having  been  passed  and  the  court 
actually  having  assumed  and  exercised  jurisdiction,  Scott  was 


*  19  Howard,  400. 

5  Still  vs.    Saunders,  8  Calif.   281. 


OF    THE    DRED    SCOTT    DECISION  97 

not  bound  by  any  admissions  made  by  his  demurrer  to  that  plea. 
Suppose  he  had  shown  by  evidence  that  his  ancestors  had  been 
Indians  then  the  judgment  on  the  plea  would  not  have  been 
relevant,  for  it  related  to  negroes  of  pure  African  blood.  Sup 
pose  that  he  had  shown  that  at  some  stage  his  ancestors,  being 
Indians,  had  become  civilized  and  had  actually  become  citi 
zens  of  Missouri?  Certainly  it  would  then  have  appeared 
upon  the  facts  at  the  trial  that  Scott  had  been  born  of  ancestors 
who  were  citizens  and  that,  therefore,  the  court  had  jurisdic 
tion.  Had  such  facts  been  shown,  the  trial  court  having 
exercised  jurisdiction,  does  anyone  doubt  that  the  Supreme 
Court,  as  appellate  tribunal,  would  have  sustained  the  juris 
diction  thus  exercised  by  the  trial  court? 

In  this  case  the  Supreme  Court  did  no  more  than  follow 
the  record  to  see  if  there  were  any  facts  shown  at  the  trial 
which  rendered  Scott  'a  citizen  of  Missouri ;  that  is,  whether 
upon  the  whole  record  there  was  anything  to  show  whether 
the  lower  court  had  jurisdiction.  Looking  at  the  questions 
of  merit  that  had  arisen  at  the  trial  the  appellate  court  found 
that  they  bore  directly  upon  the  jurisdiction  of  the  trial  court. 
Because  of  this  relation  of  the  questions  of  merit  to  the  juris 
diction  of  the  trial  court  the  Supreme  Court  justified  the 
decision  of  them.  The  court  entered  all  the  questions  of 
merit  to  show  that  even  were  the  majority  mistaken  in  the 
view  it  took  of  the  questions  raised  by  the  plea,  in  no  view  of 
the  case  had  the  trial  court  jurisdiction  to  enter  a  judgment 
upon  the  merits,  and  that  even  after  hearing  the  case  the  lower 
court  should  have  dismissed  it  for  want  of  jurisdiction.  The 
judgment  of  the  Supreme  Court  rests,  then,  upon  two  views 
looking  directly  at  the  trial  court's  jurisdiction. 

It  is  plain  to  see  that  had  the  case  been  such  that  the 
facts  at  the  trial  had  shown  jurisdiction,  and  had  the  Supreme 
Court  refused  or  neglected  to  have  examined  that  phase  of  the 
case,  the  denunciation  that  would  have  followed  certainly 
would  have  been,  //  possible,  even  more  bitter  than  it  was  and 
is.  Had  the  court  stopped  at  the  facts  of  the  plea,  the  par- 


98  LEGAL  AND  HISTORICAL  STATUS 

ties  thus  sent  from  its  bar  would  have  retorted  that  the  court 
had  not  the  courage  to  decide  all  the  questions  presented  by 
them. 

The  questions  of  merit  that  arose  at  the  trial  and  which 
were  certified  to  the  Supreme  Court,  were  those  growing  out 
of  the  temporary  sojourn  in  the  two  places  as  alleged  by 
Scott.  He  admitted  that  he  was,  before  his  removals  from 
Missouri,  and  before  being  in  these  two  places,  "a  negro  slave 
the  lawful  property  of  the  defendant."6  These  removals  from 
Missouri  were,  as  we  have  seen,  first  to  Illinois  and  from 
there  to  Minnesota,  the  latter  a  Territory  within  the  juris 
diction  of  the  Missouri  Compromise.  Here  was  an  admis 
sion  made  at  the  trial — that  Scott  himself  was  a  legal  slave  at 
least  at  one  time — quite  different  from  that  in  the  plea,  and  it 
was  plain  that  if  the  facts  of  being  for  the  times  and  under  the 
circumstances  as  admitted  in  Illinois  and  in  Minnesota  had 
not  changed  the  slave  status,  then  Scott  was  still  a  slave ;  and 
if  a  slave  admittedly  not  a  citizen  of  Missouri ;  and  not  being, 
therefore,  such  a  citizen  as  is  meant  by  the  Constitution,  the 
Federal  trial  court  upon  the  ground  of  diverse  citizenship 
had  no  jurisdiction  of  the  case. 

So  the  charge  that  the  court  uttered  obiter  dictum  lies 
against  the  judgment  upon  the  effect  of  the  removals.  Espec 
ially  this  complaint  is  lodged  against  the  decision  upon  the 
effect  of  being  within  the  jurisdiction  of  the  Missouri  Com 
promise.  The  statement  of  \Yooclrow  Wilson  is  representative 
of  the  position  of  history  when  he  declares  that  in  pronouncing 
the  Missouri  Compromise  prohibition  unconstitutional  "the 
court  left  the  proper  field  of  the  case,  and  therefore  uttered 
obiter  dicta/'7 

Let  us  measure  this  action  of  Taney  and  those  who  con 
curred  making  what  he  wrote  the  opinion  of  the  court,  with  the 
established,  well  recognized  and  long  settled  rules  for  deter- 


19   Howard,   397. 


7  History  of  the  American  People,  vol.  5,  177;  James  Brice,  The  American  Com., 
3rd  ed.,  1905,  vol.  i,  263;  Guy  C.  Lee.  The  True  Hist.  Civil  War,  127;  H.  W.  Elson, 
Hist.  U.  S.,  vol.  4,  47;  Carson,  The  Hist.  Sup.  Court  U.  S.,  vol.  2,  371. 


OF    THE    DRED    SCOTT    DECISION  99 

mining  obiter  dictum,  and  which  define  the  limits  within  which 
a  court  may  decide  a  case.  From  the  many  cases  in  which 
we  find  the  applicable  rules  I  select  such  as  are  representative 
and  which  announce  the  settled  law. 

The  old  English  definition  of  obiter  dictum  is  more  rigid 
than  the  doctrine  in  America.  Bouvier,  an  early  legal  lexi 
cographer,  defines  the  more  rigid  rule  "as  an  expression  of 
opinion,  however  deliberate,  upon  a  question,  however  fully 
argued,  if  not  essential  to  the  disposition  that  was  made  of 
the  case."  But  this  rule,  unreasonable  and  if  adhered  to  often 
injurious,  is  not  recognized  as  the  doctrine  with  us.  On  the 
contrary,  it  is  well  settled  in  this  country  that  a  court  may 
decide  any  number  of  questions  raised  in  the  case  and  grow 
ing  out  of  the  record,  having  been  duly  considered,  which  show 
reasons  for  the  disposition  made  of  that  case.  "Besides,"  as 
the  court  in  Buchner  vs.  Chicago,  etc.,  pointed  out.  "mere 
obiter  is  not  always  reprehensible.  On  the  contrary,  some  of 
the  most  sacred  cannons  of  the  common  law  had  their  origin 
in  the  dicta  of  some  wise  judge."8 

In  the  State  of  Nevada,  etc.,  vs.  Clarke9  the  court  says: 
"Dictum  is  defined  to  be  an  opinion  expressed  by  a  judge  on  a 
point  not  necessarily  arising  in  the  case.  The  reason  assigned 
for  dicta  not  being  entitled  to  weight  is  that  usually  they  are 
upon  some  point  not  discussed  at  bar — something  to  which  the 
attention  of  the  court  has  not  been  particularly  called — and 
something  on  which  the  judge  uttering  them  may  not  have 
reflected  a  moment  before  expressing  his  opinion." 

Says  a  New  York  Court:  "Dicta  are  opinions  of  a  judge 
which  do  not  embody  the  resolution  or  determination  of  the 
court,  and  are  made  without  argument,  or  full  consideration 
of  the  point,  are  not  the  professed  deliberate  determination 
of  the  judge  himself;  obiter  dicta  are  such  opinions  uttered 
by  the  way,  not  upon  the  point  or  question  pending  as  if  turn- 


8  60    Wisconsin,   264. 
»  3    Nev.    Rep.    572. 


IOO  LEGAL  AND  HISTORICAL  STATUS 

ing  aside  for  the  time  from  the  main  topic  of  the  case  to 
collateral  subjects."10 

In  1893  Justice  McCabe  of  the  supreme  court  of  Indiana, 
dissenting  upon  another  question,  had  occasion  to  lay  down  the 
rule  thus  : 

"I  concede  that  a  question  decided  that  is  not  before  the 
court,  and  not  involved  in  the  case,  is  obiter  dictum  and  not 
binding  authority.  But  when  the  court  decides  incidental 
questions  essential  to  the  support  of  the  conclusion  reached  and 
happens  to  decide  two  such  questions  when  one  would  have 
been  sufficient  to  support  the  conclusion,  one  of  such  inci 
dental  decisions  is  as  binding  a  decision,  and  as  authoritative 
as  the  other.  ...  It  cannot  be  any  less  so  because  another 
reason  is  given  in  support  of  the  conclusion  reached,  because 
another  incidental  question  is  decided  as  an  additional  ground 
on  which  to  rest  the  conclusion  reached."11 

In  1880  the  Supreme  Court  of  the  United  States  stated 
the  rule  in  similar  words :  "It  cannot  be  said  that  a  case  is  not 
authority  on  one  point  because,  although  that  point  was  prop 
erly  presented  and  decided  in  the  regular  course  of  the  con 
sideration  of  the  case,  something  else  w^as  found  in  the  end 
which  disposed  of  the  whole  matter."3 

Gathering  the  rule  for  the  determination  of  obiter  dictum 
from  the  decisions  of  the  American  courts,  the  American  and 
EnglisJi  Encyclopedia  of  La-iv,  a  work  of  highest  authority, 
says: 

"Where  the  record  presents  two  or  more  points,  and  one 
of  which,  if  sustained,  would  determine  the  case,  and  the  court 
decides  them  all,  the  decision  upon  any  one  of  the  points  can 
not  be  regarded  as  obiter.  Nor  can  it  be  said  that  a  case  is 
not  authority  on  a  point  because,  though  that  point  was  prop 
erly  presented  and  decided  in  the  regular  course  of  the  con 
sideration  of  the  case,  another  point  was  found  in  the  end 


10  Rohrback  vs.  Germania  Fire  Ins.  Co.,  62  N.  Y.  Rep.  58. 
"  136  Ind.  R.  533-4- 
"103  U.   S.   143- 


OF    THE    DRED    SCOTT    DECISION  Ipl  . 

which  disposed  of  the  whole  matter.  The  decision  on  such 
a  question  is  as  much  a  part  of  the  judgment  of  the  court  as 
is  that  on  any  other  of  the  matters  on  which  the  case  as  a  whole 
depends.  The  fact  that  the  decision  might  have  been  placed 
upon  a  different  ground  existing  in  the  case  does  not  render  a 
question  expressly  decided  by  the  court  a  dictum." 

Let  me  give  a  very  clear  illustration  of  this  rule : 

In  Ward  vs.  Maryland,13  decided  in  1870,  Mr.  Justice 
Bradley  delivered  the  following  dissenting  opinion : 

4T  concur  in  the  opinion  of  the  court,  that  the  act  of  the 
legislature  of  Maryland,  complained  of  in  this  case,  discrimi 
nates  in  favor  of  residents  and  against  non-residents  of  the 
State,  and  consequently  is  a  violation  of  the  fourth  article  of 
the  Constitution  of  the  United  States,  and  therefore,  pro  tanto, 
void.  But  I  am  further  of  opinion  that  the  act  is  in  violation 
of  the  commercial  clause  of  the  Constitution,  which  confers 
upon  Congress  the  power  to  regulate  commerce  among  the 
several  States;  and  it  would  be  so,  although  it  imposed  upon 
residents  the  same  burden  for  selling  goods  by  sample  as  is 
impo.sed  on  non-residents.  Such  a  law  would  effectually  pre 
vent  the  manufacturers  of  manufacturing  States  from  selling 
their  goods  in  other  States  unless  they  established  commercial 
houses  therein,  or  sold  to  resident  merchants  who  chose  to  send 
them  orders.  It  is,  in  fact,  a  duty  upon  importation  from  one 
State  to  another,  under  the  name  of  a  tax.  I  therefore  dissent 
from  any  expression  in  the  opinion  of  the  court  which,  in  any 
way,  implies  that  such  a  burden,  whether  in  the  shape  of  a  tax 
or  a  penalty,  if  made  equally  upon  residents  and  non-residents, 
would  be  Constitutional." 

The  two  things  emphasized  in  this  short  and  clear  dis 
senting  opinion,  are,  (i)  a  judge  may  concur  in  part  and 
dissent  in  part,  and  in  so  far  as  he  does  concur,  he  helps  to 
a  judicial  decision  by  the  court;  (2)  any  number  of  questions, 
raised  in  the  record  and  argued  by  counsel  and  considered 
by  the  court,  which  go  to  decide  the  case,  or  answer  the 


13  12  Wallace,  432. 


IO2  LEGAL  AND  HISTORICAL  STATUS 

question  upon  which  the  judgment  rests,  may  be  passed  upon, 
and  become  a  valid  part  of  the  opinion.  Here  Judge  Bradley 
gives  tivo  decisions,  either  one  of  which  disposes  of  the  case 
before  the  court.  In  that  case  the  question  was :  Is  a  certain 
State  law  prohibited  by  the  Federal  Constitution?  It  is  un 
constitutional,  the  court  said,  because  it  violates  the  fourth 
article  of  the  Constitution.  It  is  unconstitutional  says  Judge 
Bradley,  because  it  violates  the  fourth  article  of  the  Constitu 
tion  ;  but  he  is  further  of  opinion  that  it  violates  the  commer 
cial  clause  of  the  Constitution.  In  the  first  case  the  law  is 
void;  in  the  second  case  it  is  void;  either  one  disposed  of  the 
case.  But  both  questions  went  to  answer  the  question :  Is  the 
law  Constitutional?  and  thus  both — although  either  settled 
the  case — might  be  and  were  decided. 

In  the  Dred  Scott  Case,  each  question  decided  in  the 
opinion  went  to  answer  the  question :  Had  the  circuit  court 
jurisdiction  as  shown  upon  the  whole  record?  That  is:  Is 
Scott  a  citizen  of  Missouri  in  the  sense  in  which  the  word 
citizen  is  used  in  the  Constitution?  And  the  answer:  He  is 
not  such  a  citizen  because  none  of  his  race  descend  from  Amer 
ican  slaves  can  be  citizens — unless  the  Constitution  of  the 
United  States  be  amended;  and  further,  he  is  not  a  citizen 
because,  the  Missouri  Compromise  being  unconstitutional,  hav 
ing  relied  upon  it  to  change  his  admitted  slave  condition,  he 
is  a  slave;  and  upon  the  whole  he  cannot  sue  in  a  Federal 
Court  as  a  citizen  of  the  United  States." 

Railroad  Companies  vs.  Schutte  was  an  appeal  from  a 
decree  rendered  by  the  supreme  court  of  Florida,  in  a  case 
in  which  that  court  had  passed  upon  the  merits  involving  the 
constitutionality  of  certain  bond  issues  between  the  State  and 
the  Florida  Central  Railway  Company.  The  trial  court  held 
that  the  company  was  authorized  to  issue  the  bonds  that  had 
been  given  the  State  in  exchange  for  its  bonds  and  that  thereby 
a  lien  had  been  created  on  the  railway  company  in  favor  of 
bona  fide  holders;  but,  as  there  was  no  proof  that  there  were 
bona  fide  holders,  a  fact  necessary  to  the  jurisdiction  of  the 


OF    THE    DRED    SCOTT    DECISION  103 

trial  court,  that  for  that  reason  the  court  had  no  jurisdiction 
and  dismissed  the  case  for  want  of  jurisdiction.  On  the  review 
of  this  action  of  the  trial  court  by  the  Supreme  Court  of  the 
United  States  it  was  insisted  that  the  decision  of  the  trial  court 
as  to  the  validity  of  the  bonds  and  the  nature  of  the  lien 
created  thereby,  was  a  obiter  dictum,  because  the  validity  of 
the  bonds  and  the  nature  of  the  lien  that  had  been  created  were 
questions  of  merit,  and  the  court  had  dismissed  the  case  for 
want  of  jurisdiction  shown  on  another  question.  Here  we 
have  a  case  directly  analogous  to  that  under  our  consideration. 
The  trial  court  had  decided  certain  questions  of  merit,  and 
then  upon  another  ground  dismissed  the  case  because  it  said 
that  it  had  no  jurisdiction  to  try  it.  \Yhat  the  Supreme  Court 
said  upon  this  action  of  the  Florida  court  shows  clearly  whether 
or  not  a  court  may  decide  the  merits  of  a  case  and  yet  dismiss 
the  case  for  want  of  jurisdiction.  If  a  lower  court  may  do  so, 
no  one  will  question  that  the  Supreme  Court  may  exercise  the 
same  power.  Passing  directly  upon  this  action  of  the  trial 
court  said  Chief  Justice  Waite,  delivering  the  unanimous  opin 
ion  of  the  Supreme  Court  of  the  United  States : 

"As  to  the  first  question,  we  deem  it  sufficient  to  say 
that  the  supreme  court  of  Florida  has  distinctly  decided  that 
in  the  case  of  this  company,  as  well  as  the  other,  the  statutory 
authority  was  complete.  The  point  was  directly  made  by  the 
pleadings  and  as  directly  passed  on  by  the  court.  Although 
the  bill  in  the  case  wras  finally  dismissed  because  it  was  not 
proved  that  any  of  the  State  bonds  had  been  sold,  the  decision 
was  in  no  sense  dictum.  It  cannot  be  said  that  a  case  is  not 
authority  on  one  point  because,  although  that  point  was  prop 
erly  presented  and  decided  in  the  regular  course,  something 
else  was  found  in  the  end  which  disposed  of  the  whole  matter. 
Here  the  precise  question  was  properly  presented,  fully  argued, 
and  elaborately  considered  in  the  opinion.  The  decision  on 
this  question  \vas  as  much  a  part  of  the  judgment  of  the 


IO4  LEGAL  AND  HISTORICAL  STATUS 

court  as  was  that  on  any  other  of  the  several  matters  on  which 
the  case  as  a  whole  depended."14 

Now  if  a  court  may  ever  decide  questions  of  merit  while 
at  the  same  time  it  dismisses  the  case  for  want  of  jurisdiction, 
certainly  it  may  with  greater  reason  do  so  when  those  ques 
tions  of  merit  themselves  show  the  want  of  jurisdiction. 
"Where  the  record  presents  two  or  more  points,  any  one  of 
which,  if  sustained,  would  determine  the  case,  and  the  court 
decides  them  all,  the  decision  upon  any  one  of  the  points  can 
not  be  regarded  as  obiter.  .  .  .  The  fact  that  the  decision 
might  have  been  placed  upon  a  different  ground  existing  in  the 
case  does  not  render  a  question  expressly  decided  by  the 
court  a  dictum."  That  is,  if  the  Supreme  Court  in  exercising 
its  appellate  jurisdiction  decides  that  the  lower  court  was  with 
out  jurisdiction,  it  may  decide  a  thousand  questions  if  pre 
sented  in  the  record  giving  the  reason  for  this  judgment.  In  the 
record  of  the  Dred  Scott  Case  each  question  decided  in  the 
opinion  of  the  Supreme  Court  as  written  by  Taney  was  "di 
rectly  made  by  the  pleadings  and  as  directly  passed  on  by  the 
court."  "The  decision  on  each  was  as  much  a  part  of  the  judg 
ment  of  the  court  as  was  that  on  any  other  of  the  several 
matters,  on  which  the  case  as  a  whole  depended."  Measured 
by  these  recognized  and  long  established  rules  the  decision  of 
each  question  in  the  Scott  case  was  in  no  just  sense  obiter 
dictum. 

In  the  case  of  Grace  vs.  The  American  Century  Insur 
ance  Company,15  decided  November  19,  1883,  the  Supreme 
Court  of  the  United  States  decided  the  questions  of  merit, 
notwithstanding  they  held  that  the  record  did  not  show  juris 
diction  in  the  circuit  court.  This  case  embodies  the  true  Amer 
ican  doctrine.  It  was  a  case,  too,  in  which  jurisdiction  de 
pended  upon  the  diverse  citizenship  of  the  parties.  It  came 
to  the  Supreme  Court  by  writ  of  error  from  a  Federal  circuit 
court,  just  exactly  as  did  the  Scott  case.  Mr.  Justice  Harlan 

14  Railroad   Companies  vs.    Schutte,   103  U.   S.,   118,   143.     Mr.  Justice  Field  was  not 
present  at  the  argument  and   did  not  participate   in   the   decision. 

15  109   U.    S.,  278. 


OF    THE    DRED    SCOTT    DECISION  1 05 

delivered  the  unanimous  opinion  of  the  court.  After  discussing 
and  deciding  the  fnerits  of  the  questions  raised  at  the  trial, 
and  which  did  not  even  bear  remotely  upon  the  jurisdiction 
of  the  trial  court,  the  Supreme  Court  said : 

"As  the  judgment  must  be  reversed  and  a  new  trial  had, 
we  have  felt  it  to  be  our  duty,  notwithstanding  the  record,  as 
presented  to  us,  fails  to  disclose  a  case  of  which  the  court  below 
could  take  cognizance,  to  indicate  for  the  benefit  of  parties 
at  another  trial,  the  conclusion  reached  by  us  on  the  merits."16 
Then,  just  as  did  the  opinion  in  the  Scott  case,  the  court  pro 
ceeded  to  reverse  the  judgment  of  the  lower  court.  There  was 
not  a  dissent!  The  Supreme  Court  did  not  know  whether 
when  after  the  lower  court  had  set  aside  its  judgment  in  obe 
dience  to  the  mandate  of  the  appellate  court  the  parties  could 
show  jurisdiction.  The  mandate  of  the  Supreme  Court  was 
that  the  lower  court  "set  aside  the  judgment  and  for  such 
further  proceedings  as  may  not  be  inconsistent  with  this  opin 
ion/'  and  that  opinion  decided  elaborately,  at  the  same  time 
passing  upon  the  merits,  that  the  trial  court  had  no  jurisdic 
tion.  Hence  in  effect  the  trial  court  was  ordered  to  dismiss 
the  case  because  of  the  lack  of  jurisdiction.  This  action  of 
the  Supreme  Court  shows  conclusively  that  an  appellate 
court  may  decide  the  merits  of  all  the  questions  which  are 
presented  in  the  records,  even  when  the  lower  court  has  no 
jurisdiction,  where  it,  as  in  the  Scott  case,  had  entered  a 
judgment  upon  the  merits.  The  Scott  case  was  far  stronger 
for  the  operation  of  the  rule  than  is  that  of  Grace  vs.  American 
Insurance  Company.  All  the  questions  involved  in  the  Scott 
case  showed  that  in  no  view  did  the  circuit  court  have  jur 
isdiction. 

These  established  rules  justify  the  action  of  the  majority 
of  the  court,  but  there  were  other  reasons  which  must  have 
acted  even  more  powerfully  upon  the  judicial  mind  and  which 
rendered  it  imperative  that  the  court  take  the  course  pursued 
especially  in  deciding  that  the  prohibition  of  the  Missouri  Com- 

16  109  U.   S.   288. 


IO6  LEGAL  AND  HISTORICAL  STATUS 

promise  law  was  unconstitutional.  As  between  Illinois  and 
Missouri  the  court  confirmed  the  action  of  the  lower  court, 
which  had  followed  the  decision  of  the  State  court  when  this 
case  was  pending  against  Emerson's  estate,  in  the  decision  that, 
having  been  a  slave  in  Missouri,  having  been  carried  to  Illi 
nois  and  then  having  been  returned  to  Missouri  and  having 
sued  in  the  courts  of  Missouri,  her  courts  would  not  enforce 
any  anti-slavery  law  of  Illinois.  Such  laws  were  as  to  Mis 
souri  clearly  extraterritorial,  penal,  and  in  conflict  with  the 
laws  and  polity  of  the  State  in  which  Scott  sued.  The  Su 
preme  Court  of  the  United  States  had  before  the  Scott  case 
recognized  this  course  as  the  correct  one,  and  the  principle 
upon  which  it  rests  cannot  be  successfully  refuted.  Recogniz 
ing  this  basal  truth,  some  sought  to  defeat  the  force  of  the 
decision  in  this  case  upon  the  Missouri  Compromise  law,  by 
insisting  that  the  same  rule  applied  as  between  it  and  Mis 
souri,  that,  being  extraterritorial  and  penal,  the  courts  of 
Missouri  need  not  have  enforced  it,  and  that  the  appellate 
court  went  out  of  its  way  to  pass  upon  what  was  unenforceable 
in  Missouri. 

The  most  eminent  contemporary  writers  who  championed 
this  argument  are  John  Lowell  and  Horace  Gray.  In  their 
A  Legal  Review  of  the  Dred  Scott  Case,  published  in  June, 
1857,  they  argue:  The  "decision,  so  far  as  the  residence  in 
Illinois  is  concerned,  is  put  distinctly  upon  the  ground  that 
the  laws  of  Illinois  could  not  operate  on  the  plaintiff  after  his 
return  to  Missouri.  This  decision  disposes  equally  of  his 
residence  in  the  Territory,  for  his  stay  in  each  place  was  for 
an  equal  time,  and  for  similar  purposes.  The  whole  case  being 
thus  disposed  of,  the  opinion  on  the  Missouri  Compromise 
act  was  clearly  extrajudicial."17  Of  course  this  contention  dis 
regards  the  settled  American  rule  that  "  where  the  record  pre 
sents  two  or  more  points,  any  one  of  which,  if  sustained,  would 
determine  the  case,  and  the  court  decides  them  all,  the  decision 
upon  any  one  of  the  points  cannot  be  regarded  as  obiter." 


17  Law    Reporter,    Boston,   June,    1857. 


OF    THE    DRED    SCOTT    DECISION 

However,  were  this  not  true,  the  question  raised  by  Blair 
as  to  the  right  by  birth  of  Scott's  older  child,  places  the 
courts  of  Missouri  in  an  entirely  different  attitude  toward  the 
Missouri  Compromise  to  what  they  enjoyed  with  reference  to 
Illinois.  No  one  questions  that  the  entire  Scott  family  was 
before  the  court  in  the  Federal  case.  Blair  both  in  his  brief 
and  in  his  argument  laid  great  emphasis  on  this  aspect  of  the 
case,  saying  one  question  for  the  Supreme  Court  was  "whether 
the  facts  stated  in  the  agreed  case  entitled  the  plaintiff  and 
his  family,  or  either  of  them  to  freedom."18  He  called  atten 
tion  to  the  fact  that  the  older  girl  was  "born  on  board  the 
steamboat  Gypsie,  north  of  the  north  line  of  the  State  of 
Missouri  and  upon  the  river  Mississippi."19  Therefore,  as 
he  went  on  to  state,  she  was  either  born  within  the  jurisdiction 
of  Illinois  or  within  that  of  the  Missouri  Compromise.  Illi 
nois,  after  the  river  reaches  her  northern  boundary,  extends  to 
the  middle  of  the  stream.  At  that  time,  then,  upon  the  one 
side  of  the  middle  of  the  river  was  the  law  of  the  Territory 
while  upon  the  other  was  the  law  of  Illinois.  At  one  time 
Blair  said  that  this  girl,  Eliza,  would  be  presumed  to  have 
been  born  in  the  State  "if  such  presumption  is,  for  any  reason, 
more  favorable  to  her  freedom  than  the  supposition  that  she 
was  born  in  the  Territory."20  However,  he  did  not  make 
any  attempt  to  show  that  birth  in  Illinois  would  be  more 
favorable  to  her  freedom,  but  insisted  most  strongly  that  the 
peculiar  facts  before  the  court  rendered  it  imperative  that  the 
validity  of  the  Missouri  Compromise  should  be  determined. 
In  this  he  was  correct,  for  there  is  absolutely  nothing  to  favor 
the  one  presumption  or  the  other  as  to  the  place  of  her  birth. 
Counsel,  the  court  and  the  dissenting  judges  all  agreed  that 
the  few  facts  that  were  shown  concerning  the  place  of  her 
birth  presented  the  inquiry  for  the  laws  under  which  she  was 
born,  and  of  course  the  validity  of  the  Missouri  Compromise. 

"  Blair's    Brief,    S.    C.    Clerk's    Office,    2. 

19  19    Howard,    431. 

20  Brief,   16 


IO8  LEGAL  AND  HISTORICAL  STATUS 

In  either  possible  place  of  her  birth,  was  there  a  valid  anti- 
slavery  law  in  force  at  the  time? 

At  the  time  of  the  decision  of  this  case  as  well  as  at  the 
time  the  suit  was  brought  Minnesota,  in  which  Fort  Snelling  is 
located,  was  yet  a  Federal  Territory.  It  so  remained  until 
1858.  This  girl  could  have  sued  directly  in  its  courts,  and 
had  she  done  so  the  validity  of  the  Missouri  Compromise  must 
have  been  determined.  She  was  a  party  before  the  court  with 
a  right  of  future  action.  In  such  action  the  validity  of  the 
law  that  had  been  most  fully  argued  in  this  case  must  have 
been  decided  by  the  trial  court,  and  from  that  decision  there 
lay  an  appeal  to  the  Supreme  Court  of  the  United  States. 
She  had  a  right  of  action  independent  of  the  citizenship  of  her 
father.  Of  course  the  court  did  not  know  that  she  would 
ever  prosecute  this  action,  neither  did  the  court  know  that  the 
parties  would  prosecute  a  "future"  action  in  the  case  of  Grace 
vs.  American  Insurance  Company.  But  courts  act  upon  the  pre 
sumption  that  parties  will  use  every  right  to  which  they  are 
entitled,  and  in  as  far  as  possible  the  prevention  of  litigation 
when  no  advantage  could  accrue  in  a  future  action  is  an  es 
tablished  rule  of  appellate  review.  So  just  as  did  the  unani 
mous  court  in  this  recent  case  the  court  in  the  Scott  case 
held :  "As  the  judgment  must  be  reversed  and  a  new  trial  had, 
we  have  felt  it  to  be  our  duty,  notwithstanding  the  record,  as 
presented  to  us,  fails  to  disclose  a  case  of  which  the  court  be 
low  could  take  cognizance,  to  indicate  for  the  benefit  of  par 
ties  at  another  trial,  the  conclusions  reached  by  us  on  the 
merits."  And  the  more  properly  so,  because,  as  the  court  said 
of  the  questions  decided  in  Railroad  Companies  vs.  Schutte, 
so  in  the  Dred  Scott  Case  the  Missouri  Compromise  was 
properly  presented,  fully  argued,  and  elaborately  considered ; 
and  again  the  more  so  because  the  dicision  as  to  prohibita- 
tive  measure  was  to  give  another  reason  for  holding  that  the 
trial  court  had  no  jurisdiction.  A  fortiori,  to  yet  follow  the 
language  of  the  court  in  the  Florida  case :  "The  decision  on 
this  question  was  as  much  a  part  of  the  judgment  of  the  court 


OF    THE    DRED    SCOTT    DECISION  ICX) 

as  was  that  on  any  other  of  the  several  matters  on  which 
the  case   as   a  whole   depended." 

Yet  this  is  not  all.  Aside  from  any  right  of  the  girl 
to  sue  in  a  Federal  court,  apart  from  any  probability  that 
she  would  thus  sue,  the  Missouri  Compromise  law  \vas  before 
the  Supreme  Court  in  the  action  actually  under  review.  That 
we  may  more  clearly  see  this,  let  me  again  call  attention  to  the 
kinds  of  court  jurisdiction.  There  is,  as  has  been  said,  an 
important  distinction  between  the  original  jurisdiction  of  the 
Supreme  Court  and  its  appellate  jurisdiction.  Those  who 
complain  of  the  judgment  upon  the  act  of  Congress  purporting 
to  prohibit  slavery  in  the  Territory,  overlook  this  distinc 
tion  and  its  applicability  to  the  facts  of  this  case.  If  the  Su 
preme  Court  had  been  trying  a  case  which  had  been  com 
menced  in  it,  and  had  been  sitting  as  a  trial  court,  it  might  have 
omitted  some  of  the  questions  decided.  When  the  record 
in  a  case  reaches  the  Supreme  Court,  having  been  appealed 
from  a  lower  court,  generally  brought  up  on  writ  of  error  as  it 
is  called  in  the  language  of  the  law,  its  first  concern  is  as 
to  whether  it  has  appellate  jurisdiction  over  that  case.  Even 
then  it  must  look  at  the  questions  presented  in  the  record,  and 
from  the  record  determine :  unless  it  be  plain  that  there  is  no 
appellate  jurisdiction,  in  which  case  no  writ  of  error  issues 
to  the  lower  court.  For  instance,  of  the  many  cases  that 
might  be  cited,  in  Menard  vs.  Aspasia,  in  which  Judge  Mc 
Lean  wrote  the  opinion  in  1831,  it  was  determined  that  the 
Supreme  Court  had  no  jurisdiction  to  entertain  the  appeal 
from  the  judgment  of  the  trial  court.21  The  court  decided  all 
the  questions  which  showed  that  it  had  no  appellate  jurisdic 
tion  ;  but,  except  in  so  far  as  they  bore  upon  the  question  of  the 
appellate  jurisdiction  of  the  Supreme  Court,  the  court  did  not 
decide  the  questions  of  merit.  But  in  the  Dred  Scott  Case  no 
one  questioned  the  right  and  power  of  the  Supreme  Court  to 
exercise  appellate  jurisdiction. 


5    Peterri,    505. 


I  IO  LEGAL  AND  HISTORICAL  STATUS 

Now,  the  Supreme  Court  not  only  had  appellate  juris 
diction  over  the  proceedings  and  judgment  in  the  trial  court, 
but  it  had  appellate  jurisdiction  over  this  same  case  that  was 
pending  in  the  State  court,  and  which  had  been  continued  to 
await  the  decision  of  the  Supreme  Court  in  the  action  brought 
in  the  Federal  circuit  court.  Of  this  fact  the  court  was  specifi 
cally  informed  by  the  record.  In  the  State  action  there  was  no 
question  of  citizenship  involved,  and  the  State  trial  court's 
jurisdiction  was  not  disputed.  From  the  final  decision  of  the 
highest  court  of  Missouri  in  that  action  there  lay  an  appeal 
to  the  Supreme  Court  of  the  United  States  on  the  ground  that 
there  was  drawn  in  question  the  validity  of  an  act  of  Con 
gress  :  the  Missouri  Compromise. 

This  act  of  Congress  was  involved  in  the  State  action 
because  of  the  question  of  its  effect  upon  Scott  and  his  wife; 
and  in  a  more  important  sense  because  of  the  question  as  to 
its  effect  upon  the  rights  of  the  older  girl  by  reason  of  her 
birth  within  that  laic's  jurisdiction.  This  wras  as  true  of  any 
future  action  that  the  girl  had  a  right  to  bring  in  the  State 
court  of  Missouri  as  it  was  of  the  pending  action.  Blair 
argued :  "The  freedom  of  Harriet  and  her  daughter  Lizzie 
depends  on  the  validity  of  the  eighth  section  of  the  Missouri 
Compromise" — the  section  prohibiting  slavery.  Then  he  urged  : 
"The  validity  of  this  section  is  denied,  on  the  ground 
that  Congress  possesses  no  power  to  prohibit  slavery  in  the 
Territories.  This  is  a  question  of  more  importance,  perhaps, 
than  any  which  was  ever  submitted  to  this  court;  and  the 
decision  of  the  court  is  looked  for  with  a  degree  of  interest 
by  the  country  which  seldom  attends  its  proceedings.  ...  It 
is  in  form  here  a  question  on  the  construction  of  a  few  words 
in  our  fundamental  law."22  Then  reaching  out  for  every 
available  foothold  in  favor  of  the  girl  he  urged  upon  the  court 
the  necessity  of  deciding  the  validity  of  that  law  because,  if 
it  were  valid  as  he  insisted,  the  girl  was  born  free.  He  called 
the  attention  of  the  court  to  the  decisions  of  the  Southern  States 


22  Blair's    Argument,    26. 


OF    THE    DRED    SCOTT    DECISION  III 

upon  this  point,  among  them  that  it  was  "decided  by  the 
court  of  appeals  of  Virginia,  in  the  case  of  Spotts  vs.  Gilles- 
pie,23  that  a  child  born  in  the  State  of  Pennsylvania  after 
the  act  of  1780  abolishing  slavery,  was  free,  although  born 
of  a  slave  mother,  and  was  free  in  Virginia  as  well  as  in 
Pennsylvania."  And  a  yet  stronger  case  to  which  he  pointed 
\vas  the  decision  that  a  child  born  of  a  fugitive  slave  within 
the  limits  of  an  anti-slavery  law,  was  born  free.  That  is,  the 
law  within  the  actual  jurisdiction  of  which  a  child  was  born, 
determined  its  status. 

This  was,  too,  the  settled  and  undisputed  law  of  Missouri. 
It  had  long  before  this  case  been  determined  by  the  highest 
court  of  Missouri  that  a  child,  though  of  a  slave  mother,  born 
within  the  jurisdiction  of  a  valid  anti-slavery  law  was  born 
free.24 

That  Blair  was  right  in  this  position  no  one  .questioned. 
It  was  the  universal  law  in  this  country  that  the  law  in  force 
at  the  place  and  time  of  birth,  the  parents  being  negroes  of 
African  descent  and  legal  slaves  themselves,  determined 
whether  or  not  the  property  rights  of  the  owner  of  the  mother 
should  attach  to  the  child.  Being  a  negro  of  African  descent, 
the  presumption,  of  course,  was  that  the  girl  was  born  a  slave ; 
but  she  sought  to  destroy  the  presumption,  just  what  Scott 
did  not  attempt  to  do  as  to  that  raised  by  the  plea  in  abatement, 
by  taking  refuge  under  the  prohibitive  act  of  Congress.  This 
as  to  her  was  ample  were  it  valid  and  in  force.  As  between 
the  State  of  Missouri  and  the  Territory,  just  as  between  the 
two  States,  as  to  Scott  the  question  was  whether  or  not  the 
property  right  that  had  attached  under  the  Missouri  law  would 
be  recognized  as  destroyed  by  an  extraterritorial  law ;  but  as 
between  Missouri  and  the  girl  the  question  was  as  to  whether 
the  property  right  as  to  her  attached  at  birth.  It  was  by  birth 
only  after  1808  that  a  negro  could  become  slave  property  in 

2:1  6    Randolph,    572. 

24  Merry  vs.  Tiffin,  i  Mo.  725;  Theoteste  vs.  Chouteau,  2  Mo.  144;  Menard  vs. 
Aspasia,  5  Peters,  503.  This  latter,  decided  by  the  Supreme  Court  of  the  United 
States  in  1831,  being  an  appeal  from  the  Missouri  court  upon  this  question  sustains 
the  State. 


112  LEGAL  AND  HISTORICAL  STATUS 

the  United  States ;  and  after  that  date  that  property  right  had 
its  origin  by  birth  within  the  geographical  limits  of  some  law 
which  either  created  or  fostered  and  preserved  slave  property 
and  the  source  of  its  origin.  The  distinction  lay  between 
whether  or  not  property  rights  had  vested  and  whether  or  not 
they  could  vest.  If  there  was  a  law  prohibiting  the  attachment 
of  slave  property  rights,  in  this  country  it  was  held  to  take 
effect  as  to  those  born  after  its  enactment.  Upon  this  prin 
ciple  slavery  was  gradually  driven  from  all  the  Northern  States. 
Their  anti-slavery  laws  did  not  destroy  vested  property  inter 
ests,  even  when  not  specifically  so  stated,  existing  as  to  slaves 
that  were  slaves  at  the  enactment  of  the  laws.  Those  who 
claim  the  validity  of  the  anti-slavery  provision  in  the  Ordi 
nance  of  1787  admit  that  as  to  the  slaves  within  its  jurisdiction 
at  its  enactment  no  rights  were  changed.  Congress  recognized 
this  principle  when  it  bought  and  liberated  the  slave  property 
in  the  District  of  Columbia.  Such  was  the  law  in  America 
up  to  the  unwarranted  and  vindictive  attempt  of  President 
Lincoln  to  emancipate  slave  property, — an  attempt  which  suc 
ceeded  because  of  the  helpless  condition  of  the  States  affected 
and  because  acquiescence  was  the  cheapest  price  for  what  ex 
hausted  strength  could  not  achieve. 

Hence,  involving  the  validity  of  the  Missouri  Compro 
mise  there  was  not  only  a  right  of  a  future  action  subject  to 
appeal  to  the  Supreme  Court  of  the  United  States,  but  the  ap 
peal  actually  before  the  court  was  in  effect  an  appeal  from 
both  the  Federal  circuit  court  and  the  State  court, — for  the 
State  court  suspended  its  action  to  await  the  determination 
of  the  questions  by  the  Supreme  Court.  Therefore  it  is  not 
correct  to  say  that  the  decision  as  to  the  effect  of  the  stay  in 
Illinois  disposes  equally  of  the  questions  as  to  the  Territory. 
The  most  potent  question  as  to  the  girl's  birth  had  no  connec 
tion  with  or  relevancy  whatever  to  the  stay  of  her  father 
in  Illinois.  Taney  and  the  court  saw  this,  and  because  of  the 
fact  that  as  between  Missouri  and  Illinois  the  question  de 
pended  entirely  upon  the  willingness  of  Missouri  to  enforce 


OF    THE    DRED    SCOTT    DECISION  113 

the  penal  laws  of  Illinois  (if  as  against  slavery  there  had  been 
any),  the  Illinois  laws  were  not  examined.  The  court  went 
not  one  step  beyond  what  was  necessary  to  determine  the 
rights,  in  the  view  that  it  took  of  the  law,  of  all  the  parties 
to  the  case  before  it.  The  court  might  have  shrunk  from  the 
grave  duty  which  the  decision  of  the  Missouri  Compromise 
imposed ;  but  to  have  thus  shirked  would  have  been  to  have 
omitted  not  alone  what  was  proper  to  be  done  but  to  have 
spurned  the  insistent  prayers  of  those  who  bore  that  ques 
tion  to  the  bar  of  the  court,  and  who  incorporated  it  in  every 
possible  phase  in  the  record  made  by  collusion  between  schem 
ing  Republicans  for  no  other  purpose  than  to  have  it  decided 
by  that  highest  tribunal.  Thus  raised  by  the  record,  care 
fully  argued  by  counsel,  examined  by  the  mind  of  the  court, 
the  legality  and  validity  of  the  Missouri  Compromise,  the  pow 
er  of  Congress  either  to  destroy  or  prevent  slave  property 
in  a  Territory,  in  the  words  of  the  court  in  Kane  vs.  McCowan, 
"though  its  decision  might  have  been  avoided,  the  opion  was 
not  therefore  an  obiter  dictum.  It  frequently  happens  that  a 
single  point  in  a  case  will  determine  the  affirmance  or  reversal 
of  a  judgment  in  that  case,  but  it  does  not  follow  that  the  court 
may  not  proceed  to  examine  and  decide  other  points  which 
the  record  presents ;  and  indeed  the  latter  course  is  most  sat 
isfactory  to  all  parties  concerned,  and  saves  the  necessity  of 
again  resorting  to  another  trial."25 

These  rules  for  determining  obiter  dictum  lay  down  the 
settled  doctrine  in  America.  In  fact,  the  rules  as  announced 
by  these  leading  cases  are  not  authoritatively  questioned.  Sum 
ming  them  up  Taylor  says : 

"When  the  Supreme  Court  has  decided  against  the  jur 
isdiction  of  the  circuit  court  on  a  plea  in  abatement,  it  has  still 
the  right  to  examine  any  question  presented  by  exception  [and 
it  was  by  exception,  as  the  language  of  the  law  expresses  it, 
that  the  Missouri  Compromise  was  presented],  and  may  re- 


23  55   Mo.    181,    189. 


114  LEGAL  AND  HISTORICAL  STATUS 

verse  the  judgment  for  error  committed,  and  remand  the  case 
to  the  circuit  court  for  it  to  dismiss  for  want  of  jurisdiction."26 

This  was  what  the  opinion  as  written  by  Taney  and  as 
concurred  in  by  the  majority  did,  the  conclusion  being: 

"Upon  the  whole,  therefore,  it  is  the  judgment  of  this 
court,  that  it  appears  by  the  record  before  us  that  the  plaintiff 
in  error  is  not  a  citizen  of  Missouri,  in  the  sense  in  which 
that  word  is  used  in  the  Constitution ;  and  that  the  circuit 
court  of  the  United  States,  for  that  reason,  had  no  jurisdic 
tion  in  the  case,  and  could  give  no  judgment  in  it.  Its  judg 
ment  for  the  defendant  must,  consequently,  be  reversed,  and 
a  mandate  issued  directing  the  suit  to  be  dismissed  for  want 
of  jurisdiction."27 

It  is  interesting  to  remember  in  connection  with  the  fact 
that  Scott  was  sent  from  the  Federal  court  because  he  was 
held  not  to  be  a  citizen,  in  the  sense  in  which  that  word  is 
used  in  the  Constitution,  that  as  early  as  1816  our  Supreme 
Court  decided  that  one  who  was  a  citizen  of  a  Territory  could 
not  sue  in  a  Federal  court  as  a  citizen  as  the  word  is  used 
in  the  same  clause  of  the  Constitution  upon  which  Scott's  at 
torney  relied.  The  same  court  has  decided  that  a  "citizen  of 
the  District  of  Columbia  could  not  maintain  a  suit  in  the  cir 
cuit  court  of  the  United  States,"  on  the  ground  of  citizenship 
as  provided  in  the  jurisdiction  clause  of  the  Constitution.27 
These  decisions  rest  upon  the  fact  that  neither  the  District 
of  Columbia  nor  a  Territory  is  a  State  in  the  sense  in  which 
that  word  is  used  in  the  Constitution.  So  that  we  see  that 
the  court  did  not  apply  to  Scott  any  peculiar  or  discriminating 
rule,  or  use  any  method  of  construction  and  interpretation  that 
had  not  been  and  that  was  not  yet  actually  applied  to  all  per 
sons,  white  or  black,  invoking  the  jurisdiction  of  Federal 
courts.  Neither  did  the  decision  deny  to  negroes  the  Federal 


20  Jurisdic.  and  Procedure  of  the  Supreme  Court  U.   S.    (1905),  651. 

27  19    Howard,    454. 

An   instance   of  an   obiter   dictum   is   in   DeLima   vs.    Bidwell,    152   U.    S.    i,   one   of 
the  famous   insular  cases.      See  U.    S.   vs.   Heinszen,  £c.,   206   U.    S.    370. 

28  i   Wheat.  93:   Curtis  (the  judge  who  dissented  in  the  Scott  case),  Jurid.  of  U.  .S. 
Courts,    2nd   ed.,    138;    Hepburn   vs.    Ellzy,    2    Cranch,    445. 


OF    THE    DRED    SCOTT    DECISION  115 

courts,  as  I  have  before  said.  Any  slave  had  the  right  to  sue 
for  his  freedom  in  the  courts  of  any  State,  and  the  courts, 
especially  of  the  Southern  States,  not  only  heard  his  complaint, 
but  afforded  him  protection  and  opportunity  for  the  hearing. 
In  all  cases  where  a  ''final  judgment  or  decree  in  any  suit  in 
the  highest  court  of  a  State  in  which  a  decision  in  the  suit 
could  be  had,  where  there  is  drawn  in  question  the  validity  of 
a  treaty  or  statute  of,  or  any  authority  exercised  under,  the 
United  States,  and  the  decision  is  against  their  validity;  or 
where  there  is  drawn  in  question  the  validity  of  a  statute  of, 
or  an  authority  exercised  under  a  State,  on  the  ground  of 
their  being  repugnant  to  the  Constitution,  treaties,  or  laws 
of  the  United  States,  and  the  decision  is  in  favor  of  their 
validity;  or  where  any  title,  right,  privilege,  or  immunity  is 
claimed  under  the  Constitution,  or  any  treaty  or  statute  of, 
or  commission  held  or  authority  exercised  under,  the  United 
States,  and  the  decision  is  against  the  title,  right,  privilege, 
or  immunity  specially  set  up  or  claimed  by  either  party,  under 
such  Constitution,  treaty,  statute,  commission  or  authority," 
an  appeal  lies  to  the  Supreme  Court  of  the  United  States, 
which  as  an  appellate  court  has  the  power  to  re-examine  and 
reverse  or  affirm.29  From  the  earliest  days  clown  to  the  Dred 
Scott  decision  this  was  true ;  and  often  suits  in  State  courts 
by  negro  slaves  seeking  freedom  were  appealed  to  the  Su 
preme  Court  of  the  United  States,  and  there  finally  determined, 
as  can  be  seen  by  inspecting  the  reports. 

Naturally  one  asks  why,  in  this  view7  of  the  Dred  Scott 
decision,  the  now  prevalent  error  has  so  long  remained.  Pos 
sibly  one  explanation  lies  in  the  fact  that  writers  and  teachers 
have  too  long  largely  accepted  what  was  said  of  the  opinion 
while  yet  the  sting  of  defeat  warped  the  judgment.  How 
ever,  Wooclrow  Wilson,  with  no  reference  to  this  case,  once 
uttered  a  truth  timely  and  applicable.  He  said :  "\Ye  write 
nowadays  a  great  deal  with  our  eyes  circumspectly  upon  the 
tastes  of  our  neighbors,  but  very  little  with  our  attention  bent 


29  27   Am.   F.ng.    Enc.   Law,   640;   Desty's   Fed.   Proced.    766;   and  any  standard   legal 
work    upon    this    subject. 


Il6  LEGAL  AND  HISTORICAL  STATUS 

upon  our  own  natural  selfspeaking  thoughts  and  the  very 
truth  of  the  matter  whereof  we  are  discoursing."  Too,  a  yet 
no-less  unpardonable  cause  for  historic  untruth  is  that  "the 
truth  of  history  is  a  very  complex  and  a  very  occult  matter. 
.  .  .  The  thing  is  infinitely  difficult.  ...  So  historians  take 
another  way,  which  is  easier :  they  tell  part  of  the  truth, — 
and  obtain  readers  to  their  liking  among  those  of  similar  tastes 
and  talents  to  their  own."30 


Mere  Literature  and  Other  Essays,   54,  162. 


VII. 
CONGRESS  AND  TERRITORIAL  LEGISLATION. 

Some  acts  of  government  are  not  subject  to  review  or 
question  by  our  courts.  Such  acts  are  called  political,  and  be 
long  absolutely  and  exclusively  to  the  legislative  and  executive 
branches  of  our  government;  and  in  reference  to  such  powers 
these  branches  are  also  called  political.  It  was  contended 
by  some  that  such  questions  as  the  control  of  domestic  slavery 
in  a  Territory  belonged  exclusively  to  the  political  department 
of  the  Federal  Government ;  and  that,  therefore,  the  courts 
could  not  review  such  legislation.  Others  insisted  that  the 
courts  had  jurisdiction  to  review  to  find  if  any  specific  prohi 
bition  of  the  Constitution  had  been  violated,  contending  that 
Congress  had  plenary  power  to  enact  for  the  people  of  a  Ter 
ritory  any  law  it  deemed  needful  so  that  it  be  not 
an  ex  post  facto  law  or  bill  of  attainder,  or  law  impairing  the 
obligation  of  contracts;1  or  in  disregard  of  any  express  prohi 
bition  contained  in  the  Constitution.2  All  agreed  that  the 
anti-slavery  provisions  of  the  Missouri  Compromise  measure 
certainly  did  not  come  under  any  one  of  these  "  express  prohi 
bitions  on  Congress  not  to  do  certain  things"  contained  in 
the  Constitution.  Hence  arose  the  questions  :  Do  the  provisions 
of  the  Constitution  apply  to  Congress  in  legislating  for  a  Ter 
ritory?  If  so,  what  is  the  measure  of  power  when  legislating 
over  persons  and  property?  Or,  in  legislating  for  a  Territory 
a  part  of  the  United  States,  does  the  sovereignty  of  the  Fed 
eral  Government  recognize  in  any  respect  the  limitations  im- 


1  Art.    i,   sees'.    9   &    10,    Const. 

a  See    Judge    Curtis'    argument,    19    Howard,    614. 

117 


Il8  LEGAL  AND  HISTORICAL  STATUS 

posed  upon  Congress  by  the  Constitution?  That  is,  were 
such  measures  as  the  Missouri  Compromise  within  legislative 
power,  and  if  within  legislative  power,  were  they  political? 
Judges  Curtis  and  McLean,  the  two  dissenting  judges, 
took  a  ground  in  part  in  common  with  the  majority,  and  held 
that  the  Constitution  was  operative  upon  Congress  in  such 
cases,  but  that  the  terms  of  that  instrument  conferred  upon 
Congress  plenary  authority.  Others  of  influence  in  the  councils 
of  the  nation,  and  who  were  not  on  the  bench,  took  the  ground 
that  in  legislating  for  territory  such  as  was  the  Louisiana  Pur 
chase  at  the  time  of  the  Missouri  Compromise,  Congress  exer 
cised  the  legislative  functions  of  the  untrammeled  sovereignty 
of  a  nation,  and  therefore  rested  under  none  of  the  restraints 
of  the  Constitution. 

The  majority  of  the  court,  in  the  words  of  Chief  Justice 
Taney  upon  this  question  held  and  decided  : 

"The  power  to  acquire  [territory]  necessarily  carries  with 
it  the  power  to  preserve  and  apply  to  the  purposes  for  which 
it  was  acquired.  The  form  of  government  to  be  established 
necessarily  rested  in  the  discretion  of  Congress.3  .  .  .  But  the 
power  of  Congress  over  the  person  or  property  of  a  citizen  can 
never  be  a  mere  discretionary  power  under  our  Constitution 
and  form  of  government.  The  powers  of  the  government  and 
the  rights  and  the  privileges  of  the  citizens  are  regulated  and 
plainly  defined  by  the  Constitution  itself.  And  when  the  Ter 
ritory  becomes  a  part  of  the  United  States,  the  Federal  Govern 
ment  enters  into  possession  in  the  character  impressed  upon  it 
by  those  who  created  it.  It  enters  upon  it  with  its  powers 
over  the  citizen  strictly  defined,  and  limited  by  the  Constitu 
tion,  from  which  it  derives  its  own  existence,  and  by  virtue  of 
which  alone  it  continues  to  exist  and  act  as  a  government  and 
sovereignty.  It  has  no  power  of  any  kind  beyond  it;  and  it 
cannot,  when  it  enters  a  Territory  of  the  United  States,  put 

3  The  younger  student  must  not  permit  confusion  between  the  form  of  govern 
ment  and  the  power  over  persons  who  are  to  be  governed  and  whatever  rights  they 
have.  The  form  simply  means  the  machinery  by  which  the  laws  shall  be  administered; 
as',  for  instance,  by  a  governor  appointed  by  the  President  and  a  commission  of  other 
officers  appointed  by  Congress. 


OF    THE    DRED    SCOTT    DECISION  119 

off  its  character,  and  assume  discretionary  or  despotic  powers 
which  the  Constitution  has  denied  to  it.  ...  The  Territory  be 
ing  a  part  of  the  United  States,  the  government  and  citizen 
both  enter  it  under  the  authority  of  the  Constitution,  with  their 
respective  rights  defined  and  marked  out;  and  the  Federal  Gov 
ernment  can  exercise  no  power  over  his  person  or  property,  be 
yond  what  that  instrument  confers,  nor  lawfully  deny  any  right 
which  it  has  reserved/'4 

If  this  doctrine,  that  the  Constitution  controlled  Con 
gress  in  legislating  for  a  Territory,  should  be  accepted  Web 
ster  and  Benton  had  taught  in  vain.  Such  men  do  not  die 
easily,  so  Benton  marshalled  the  old  forces  around  the  now 
perishing"  doctrine  and  struggled  desperately.  Benton  was 
Missouri's  distinguished  Senator  for  a  number  of  years,  an 
anti-slavery  Democrat,  but  opposed  to  abolition  methods  in 
vogue  in  the  North  and  Northwest.  Largely  because  a  Dem 
ocrat  Benton' s  influence  has  done  much  to  keep  history  in  error 
regarding  the  political  nature  of  the  Missouri  Compromise 
law,  and  as  to  the  source  of  the  power  and  right  of  Congress 
to  legislate  for  Territories. 

Benton'' s  arguments  are  published  in  his  "Legal  and  His 
torical  Examination  of  the  Dred  Scott  Case,"  which  came 
from  the  press  in  i85/.5  In  common  with  the  arguments 
made  earlier  by  Webster  he  insisted  that  Congress  should 
govern  the  Territories  independently  of  the  Constitution.  He 
would  have  the  Constitution  in  its  limitations  on  Congress 
confined  to  the  geographical  boundaries  of  the  States.  His 
fundamental  premise  was  that  the  "fundamental''  error  of  the 
court,  "father  to  all  political  errors,"  was  the  proposition  that 
"the  Constitution  extends  to  the  Territories."6  Not, only  in 
his  debate  in  Congress  with  Calhoun,  but  in  the  courts  Web 
ster  clung  to  his  theory.  In  the  case  of  American  Insurance 
Company  vs.  Canter,7  involving  the  relation  of  Florida  as  a 


4  19   Howard,   449,  450. 

3  Extracts    from    Benton's    work    are    given    in    volume    four    of    Hart's    History    as 
Told  by  Contemporaries,  p.    123.      The  complete  work  may  be   found   in   large  libraries. 

6  Benton's     Examination,     31. 


I2O  LEGAL  AND  HISTORICAL  STATUS 

Territory  to  the  United  States,  Webster  argued  before  the 
Supreme  Court  of  the  United  States  that  "Florida  was  to  be 
governed  by  Congress  as  she  thought  proper"  regardless  of  any 
power  conferred  or  withheld  by  the  Constitution. 

However,  the  doctrine  of  Calhoun  had  won  its  way  even 
into  the  ranks  of  the  Republican  party.  Rejecting  the  teach 
ing  of  Webster  and  Benton,  of  those  actively  engaged  in  this 
case,  eminent  representatives  of  their  parties,  we  find  Curtis 
and  McLean  of  the  United  States  Supreme  Court,  Blair  of 
counsel  for  Scott,  and  G.  T.  Curtis,  Mr.  Justice  Curtis'  brother. 
Shoulder  to  shoulder  with  them  were  now  the  Republicans. 
They  had  gone  into  the  court  in  this  case  standing  upon  the 
position  that  Congress  could  not  terminate  property  rights  ad 
hering  in  slaves  or  any  other  objects  of  property — unless  the 
Constitution  gave  Congress  that  power.  They  differed  from 
the  Chief  Justice  and  the  majority  merely  upon  the  construction 
of  the  Constitution. 

Mr.  Justice  Curtis'  argument  is  regarded  by  some  his 
torians  as  most  conclusive,  and  his  views  are  yet  widely  ac 
cepted.  Certainly  they  are  representative.  His  position  was 
this : 

"Congress  possesses  the  power  of  governing"  territory 
"acquired  either  by  conquest  or  treaty,"  "when  acquired,  not 
by  resorting  to  supposititious  powers,  nowhere  found  described 
in  the  Constitution,  but  expressly  granted  in  the  authority  to 
make  all  needful  rules  and  regulations  respecting  the  terri 
tory  of  the  United  States.  ...  I  construe  this  clause,  there 
fore,  as  if  it  had  read,  Congress  shall  have  power  to  make  all 
needful  rules  and  regulations  respecting  those  tracts  of  coun 
try,  out  of  the  limits  of  the  several  States,  which  the  United 
States  have  acquired  or  may  hereafter  acquire  .  .  .  this  is  a 
grant  of  power  to  Congress — it  is  therefore  necessarily  a  grant 
of  power  to  legislate.  .  .  .  What  are  the  limits  of  that  power  ? 
To  this  I  answer,  that,  in  common  with  all  other  legislative 
powers  of  Congress,  it  finds  its  limits  in  the  express  prohibi 
tions  on  Congress  not  to  do  certain  things;  that,  in  the  exer- 


7  i   Peters,  538. 


OF    THE    DRED    SCOTT    DECISION  121 

cise  of  the  legislative  power,  Congress  cannot  pass  an  ex  post 
facto  law  or  bill  of  attainder;  and  so  in  respect  to  each  of  the 
other  prohibitions  contained  in  the  Constitution. 

"Besides  this,  the  rules  and  regulations  must  be  needful. 
But  undoubtedly  the  question  whether  a  particular  rule  or  regu 
lation  be  needful  must  be  finally  determined  by  Congress  itself. 
Whether  a  law  be  needful,  is  a  legislative  or  political,  not  a 
judicial,  question.  Whatever  Congress  deems  needful  is  so, 
under  the  grant  of  power.  .  .  . 

.  .  I  cannot  doubt  that  this  is  power  to  govern  the 
inhabitants  of  the  territory,  by  such  laws  as  Congress  deems 
needful,  until  they  obtain  admission  as  States.  .  .  . 

"It  will  not  be  questioned  that,  when  the  Constitution  of 
the  United  States  was  framed  and  adopted,  the  allowance 
and  prohibition  of  negro  slavery  were  recognized  subjects  of 
municipal  legislation :  every  State  had  in  some  measure  acted 
thereon ;  .  .  .  The  purpose  and  object  of  the  clause  empower 
ing  Congress  to  make  all  needful  rules  and  regulations  respect 
ing  territory  being  to  enable  Congress  to  provide  a  body  of 
municipal  law  for  the  government  of  the  settlers,  the  allowance 
or  prohibition  of  slavery  comes  within  the  known  and  rec 
ognized  scope  of  that  purpose  and  object. "* 

In  this  argument  of  Curtis  we  have  the  antithesis  of  the 
position  taken  by  the  Chief  Justice  with  whom  the  majority 
of  the  court  agreed,  in  construing  the  words  of  the  Consti 
tution.  How  do  the  two  positions  stand  as  measured  by  rules 
determined  by  recent  and  settled  constructions?  Too,  what  has 
become  of  the  theory  of  Webster  and  the  teaching  of  Benton  ? 

Questions  identical  in  principle  to  that  which  the  con 
stitutionality  of  the  Missouri  Compromise  presented  have 
arisen  concerning  other  Territories;  and  questions  not  less 
difficult  and  important  come  to  us  from  Alaska,  Porto  Rico, 
and  the  more  distant  Philippines.  Fortunately  for  the  stu 
dents  of  ante-bellum  history  no  change  in  our  Constitution 
has  altered  the  principles  or  the  provisions  by  which  Congres- 


8  19    Howard,    614-15-16. 


122  LEGAL  AND  HISTORICAL  STATUS 

sional  power  in  such  cases  is  to  be  measured.  From  the  many 
cases  I  shall  quote  representative  ones ;  so  that  the  now  settled 
doctrine  may  be  seen,  at  least  as  to  Territory  such  as  was  that 
affected  by  the  Missouri  Compromise. 

As  early  as  1850  the  power  of  Congress  to  enact  law 
for  a  Territory  was  considered  by  the  Supreme  Court  of  the 
United  States  in  Webster  vs.  Reid.9  The  case  turned  upon  the 
\alidity  of  a  statute  of  the  Territory  of  Iowa,  which  provided 
for  trial  'without  a  jury  and  by  the  judge  of  a  certain  class 
of  actions  at  law,  growing  out  of  contests  over  property  rights. 
Judge  McLean,  who  dissented  in  the  Scott  case,  delivered  the 
opinion  of  the  court.  The  court  held  that  the  seventh  amend 
ment  of  the  Constitution,  preserving  the  right  of  trial  by  jury 
in  certain  suits,  was  applicable  to  the  Territories,  and  binding 
upon  Congress  in  providing  the  organic  law  under  which  the 
territorial  legislature  acted,  and  that  the  act  in  question,  be 
ing  in  violation  of  the  amendment,  was  void. 

From  that  day  on  clown  to  the  present  the  principles  upon 
which  the  Dred  Scott  decision  rests  have  more  and  more  been 
recognized  as  the  distinctive  features  of  our  Government.  The 
Supreme  Court  of  the  United  States  in  Reynolds  vs.  the 
United  States,  in  i878,10  treated  the  sixth  amendment  of  the 
Constitution  as  applicable  to  Congress  in  legislating  for  the 
Territory  of  Utah ;  and  a  similar  application  was  made  in 
Springville  vs.'  Thomas,  i896,1L  and  in  the  American  Publish 
ing  Company  vs.  Fisher.12  In  Thompson  vs.  Utah,  decided 
the  same  year,13  Judge  Harlan,  speaking  for  the  court,  pointed 
out  that  it  was  then  "no  longer  an  open  question"  that  the 
provisions  of  the  "National  Constitution  relating  to  the  rights 
of  trial  by  jury  in  suits  at  common  law"  and  "to  trial  by  jury 
for  crimes  and  for  criminal  prosecutions,"  applied  to  the  Terri 
tories  of  the  United  States. 


9n    Howard,   437. 
i°98  U.   S.    145- 

11  166  U.   S.  707. 

12  Ib.  464. 

«  170  U.  S.  343- 


OF    THE    DRED    SCOTT    DECISION  123 

The  seventh  amendment  preserves  the  right  of  trial  by 
jury  in  certain  civil  actions.  There  is  no  express  provision  in 
this  article  that  "trial  by  jury"  shall  mean  the  unanimity  of 
the  common  law  rule,  but  in  Springville  vs.  Thomas,  where  "it 
was  contended  that  the  Territorial  legislature  of  Utah  was 
empowered  by  Congress,  in  the  organic  act  of  the  Territory, 
to  dispense  with  unanimity  of  jurors  in  rendering  a  verdict 
in  criminal  cases,"  the  court  said :  "In  our  opinion  the  seventh 
amendment  secured  unanimity  in  finding  a  verdict  as  an  es 
sential  feature  of  trial  by  jury  in  common  law  cases  and  the 
act  of  Congress  could  not  impart  the  power  to  change  the 
Constitutional  rule,  and  could  not  be  treated  as  attempting  to 
do  so." 

In  the  case  of  the  Monongahela  Navigation  Co.  vs.  the 
United  States,  the  court  said :  "But  like  other  powers  granted 
to  Congress  by  the  Constitution  the  power  to  regulate  com 
merce  is  subject  to  all  the  limitations  imposed  by  that  instru 
ment,  and  among  them  is  that  of  the  fifth  amendment."  Then 
proceeding  to  construe  the  latter  clause  of  that  amendment  the 
court  continued:  If  "Congress.  .  .  .  deem  it  necessary  to  take 
private  property,  then  it  must  proceed  subject  to  the  limita 
tions  imposed  by  the  fifth  amendment,  and  can  take  only  on 
payment  of  just  compensation."  Quoting  this  in  1892,  Justice 
Brewer  said:  "And  if  that  be  true  of  the  powers  expressly 
granted,  it  must  as  certainly  be  true  of  those  that  are  only 
granted  by  implication."14 

Still  further  the  court  repeats  the  settled  rule  in  the 
case  of  the  Monongahela  Navigation  Company  vs.  the  United 
States : 

"The  language  used  in  the  fifth  amendment  in  respect 
to  this  matter  is  happily  chosen.  The  entire  amendment  is  a 
series  of  negations,  denials,  of  right  or  power  in  the  Govern 
ment.  .  .  . 

"Congress  seems  to  have  assumed  the  right  to  determine 

what  shall  be  the  measure  of  compensation.     But  this  is  ju- 

% 

14  149  U.   S.   736. 


124  LEGAL  AND  HISTORICAL  STATUS 

dicial,  not  a  legislative  question.  The  legislature  may  deter 
mine  what  private  property  is  needed  for  public  purposes — 
that  is  a  question  of  a  political  and  legislative  character;  but 
when  the  taking  has  been  ordered,  then  the  question  of  compen 
sation  is  judicial.  It  does  not  rest  with  the  public  taking  the 
property,  through  Congress  or  the  legislature,  its  representa 
tives,  to  say  what  compensation  shall  be  paid,  or  even  what 
shall  be  the  rule  of  compensation.  The  Constitution  has  de 
clared  that  just  compensation  shall  be  paid,  and  the  ascertain 
ment  of  that  is  a  judicial  inquiry.15 

That  the  protections  of  the  Constitution  over  property, 
as  thus  so  long  settled  with  us,  apply  to  property  in  Territory, 
there  can  be  no  question.  In  Yick  \\'o  vs.  Hophins1"  Mr. 
Justice  Field  reiterated  the  rule  long  recognized  when  he 
observed  that  the  provisions  of  the  fourteenth  amendment  to 
secure  life,  liberty,  and  property  "are  universal  in  their  appli 
cation  to  all  persons  within  the  Territorial  jurisdiction;"  and, 
confirming  this,  Air.  Justice  Shiras,  in  Wong  Wing  vs.  the 
United  States,17  said :  "Applying  this  reasoning  to  the  fifth 
and  sixth  amendments,  it  must  be  concluded  that  all  persons 
within  the  territory  of  the  United  States  are  entitled  to  the 
protection  guaranteed  by  those  amendments." 

When  cases  growing  out  of  our  insular  possession  began 
to  come  up  for  decision,  some  differences  between  opinions  of 
members  of  the  court  developed.  In  Do\vns  vs.  Bidwell  and 
DeLima  vs.  Bidwell18  it  was  decided  that  the  plaintiff  therein 
was  not  entitled  to  recover  the  amount  of  duties  he  had  paid 
under  protest  upon  importation  into  the  city  of  New  York 
of  oranges  from  San  Juan,  Porto  Rico,  in  November,  1900, 
after  the  passage  of  the  Foraker  act.  But  there  was  no  con 
currence  of  a  majority  of  the  court  as  to  the  grounds  of  the 
judgment.  A  difference  developed  among  members  of  the 
court  as  to  whether  Congress  in  legislating  for  territory  not 


15  148  U.  S.  327- 

16  118  U.  S.  300. 

17  163  U.  S.  228. 

18  182  U.  S.  244. 


OF    THE    DRED    SCOTT    DECISION  125 

made  a  part  of  the  United  States  was  under  all  the  restrictions 
of  the  Constitution  applicable  when  legislating  for  territory 
theretofore  incorporated  into  the  United  States. 

Following  this  judgment,  without  a  decision  as  to  its 
grounds,  came  Hawaii  vs.  Mankichi19  in  which  the  right  to 
jury  trial  in  outlying  territory  of  the  United  States  was  the 
main  question.  The  court  decided,  over  the  protest  of  some 
of  the  judges,  that  the  provisions  of  the  Federal  Constitution 
as  to  grand  and  petit  juries  relate  to  mere  method  of  pro 
cedure  and  are  not  fundamental  in  their  nature,  and  therefore 
that  as  to  such  matters  of  method  in  legislating  for  such  ter 
ritory  not  yet  a  part  of  the  United  States,  Congress  was  not 
under  all  the  restraints  and  limitations  of  the  Constitution 
which  would  be  binding  when  legislating  for  territory  a  part 
of  the  United  States,  and  so  that  Congress  might  provide 
for  jury  trial  other  than  that  preserved  by  the  Constitution, 
when  legislating  for  outlying  and  unannexed  country.  Judge 
Marian's  dissent  in  this  case  is  especially  valuable  for  his  de 
fence  of  the  applicability  of  those  fundamental  rights  under 
all  conditions  of  territory. 

In  Dorr  vs.  the  United  States,20  decided  May,  1904,  the 
question  "whether  in  the  absence  of  a  statute  expressly  con 
ferring  the  right,  trial  by  jury  is  a  necessary  incident  to  ju 
dicial  procedure  in  the  Philippine  Islands,  where  demand  for 
trial  by  that  method  has  been  made  by  the  accused  and  denied 
by  the  courts  established  in  the  islands,"  the  court  in  its  de 
cision  said :  "It  may  be  regarded  as  settled  that  the  Constitu 
tion  of  the  United  States  is  the  only  source  of  power  authoriz 
ing  action  by  any  branch  of  the  Federal  Government.  'The 
government  of  the  United  States  was  born  of  the  Constitution, 
and  all  powers  which  if  enjoys  or  may  exercise  must  be  either 
derived  expressly  or  by  implication  from  that  instrument."' 
Then  the  court  pointed  out  that  the  islands  at  the  time  of  the 
suit  were  not  incorporated  into  the  United  States,21  and  held 


19  190  U.  S.   197. 
2"  195   U.    S.,    153. 

21  Ib.  143. 


126  LEGAL  AND  HISTORICAL  STATUS 

that  the  Constitution  does  not  require  Congress  to  enact  for 
ceded  territory,  not  made  a  part  of  the  United  States  by  the 
political  department  of  the  Government,  a  system  of  laws 
which  shall  include  the  right  of  trial  by  jury.22 

However,  as  to  territory  incorporated  into  the  United 
States,  the  principles  have  remained  clear  and  undisturbed. 

A  representative  case  comes  from  the  Territory  of  Alas 
ka.  Article  three  of  the  treaty  concerning  Alaska23  has  been 
held  by  the  Supreme  Court  to  have  incorporated  that  Ter 
ritory  into  and  to  have  made  it  a  part  of  the  United  States, 
just  as  was  the  Louisiana  Territory  a  part  of  the  United  States 
at  the  time  of  the  enactment  of  the  Missouri  Compromise. 
In  enacting  a  code  for  Alaska  Congress24  provided :  "That 
hereafter  in  trials  for  misdemeanors  six  persons  shall  consti 
tute  a  legal  jury." 

Now,  just  as  in  the  other  cases,  there  was  a  rule  for  a 
Territory,  and  one  which  Congress  deemed  needful.  It  'was 
one  which  did  not  come,  most  clearly,  within  the  express  pro 
hibitions  of  the  Constitution  to  which  alone  Mr.  Justice  Curtis 
insisted  Congress  must  look  for  what  it  could  not  do.  This 
Alaskan  law  was  one  which  met  every  condition  that,  he  laid 
down.  It  was  not  "within  the  express  prohibitions  on  Con 
gress  not  to  do  certain  things;"25  it  was  a  municipal  regula 
tion  made  for  the  government  of  territory  outside  of  the  orig 
inal  States  or  of  any  State.  It  was  a  rule  or  regulation  which 
Congress  had  determined  to  be  "needful."  It  was  for  a  Ter 
ritory  a  part  of  the  United  States.  It  was  a  personal  regula 
tion,-  a  law  for  the  government  of  persons  and  the  determina 
tion  of  their  rights.  It  gave  rise  to  a  case  parallel  with  the 
Dred  Scott  Case  upon  the  constitutionality  of  the  Missouri 
Compromise.  Having  gone  there  from  a  local"  court  in  the 
regular  way,  this  case  involving  the  Alaska  law  reached  the 
Supreme  Court  of  the  United  States,  and  on  April  10,  1905, 


22  Ib.   153- 

23  15    Stats,   at   Large,   542. 

24  31    Stats,   at   Large,   358,   ch.    7: 
88  19  Howard  614. 


OF    THE    DRED    SCOTT    DECISION 

Mr.  Justice  White  delivered  the  opinion  of  the  court  therein. 
The  question  at  issue  was  whether  Congress  had  the  power  to 
provide  such  a  law  for  a  Territory.  It  was  alleged  that  no 
such  power  rested  in  Congress  either  upon  the  ground  of 
supreme  national  sovereignty,  under  the  "rules  and  regula 
tions"  clause26  relied  upon  by  Curtis,  or  on  any  ground  what 
ever,  and  that  particularly  the  law  was  in  violation  of  the 
sixth  amendment  of  the  Constitution.  This  amendment  says : 
"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  State 
or  district  wherein  the  crime  shall  have  been  committed,  which 
district  shall  have  been  previously  ascertained  by  law,"  etc. 
Whether  it  shall  be  a  jury  of  six,  seven  (as  we  have  in  many 
States  under  State  law)  or  twelve  the  Constitution  does  not 
expressly  say. 

"As  it  conclusively  results  from  the  foregoing  considera 
tions  that  the  sixth  amendment  to  the  Constitution  was  appli 
cable  to  Alaska,  and  as  of  course,  being  applicable,  it  was  con 
trolling  upon  Congress  in  legislating  for  Alaska,  it  follows  that 
the  provision  of  the  act  of  Congress  under  consideration,  de 
priving-  persons  accused  of  misdemeanors  in  Alaska  of  a  right 
to  trial  by  common  law  jury  [of  twelve  men],  was  repugnant 
to  the  Constitution  and  void,"  the  court  decided.27 

That  this  territorial  law  which  Congress  had  assumed 
to  enact  and  which  it  declared  needful  was  void,  because  un 
constitutional,  was  the  unanimous  decision  of  the  full  court. 
The  restraints  of  the  Constitution  are  not  only,  therefore, 
applicable,  but  that  instrument  is  to  be  now  applied  as  meant 
when  adopted  or  amended.  At  the  time  of  the  adoption  and 
the  amendment  it  was  understood  that  a  jury  meant  twelve 
men.  So  of  all  the  powers  or  limitation  of  Congress ;  in  the 
meaning  in  which  they  were  incorporated  are  they  enforced 
until  changed  by  the  people. 

Therefore,  as  can  readily  be  seen,  it  is  no\v  the  settled 

28  Art.    IV.,    sec.    3,    par.    2. 

27  Frerl    Rasmussen    vs.    the   U.    S.,    25    S.    C.    Rept.    514,    518,    197    U.    S;    518. 


128  LEGAL  AND  HISTORICAL  STATUS 

doctrine  in  America  that  in  legislating  for  a  Territory,  most 
certainly  when  it  is  a  part  of  the  United  States  as  was  the 
Louisiana  Purchase  when  the  Missouri  Compromise  was  en 
acted,  both  the  express  prohibitions  and  "those  fundamental 
limitations  in  favor  of  personal  rights  which  are  formulated 
in  the  Constitution  and  its  amendments,"  are  binding  upon 
Congress.28  As  Judge  McLean  even  when  dissenting  ad 
mitted  :  "No  powers  can  be  exercised  which  are  prohibited 
by  the  Constitution  or  which  are  contrary  to  its  spirit."29 
There  can,  in  the  face  of  the  admitted  constitutional  law  and 
practice  of  to-day,  be  no  question  that  Taney  was  right  in  con 
tending  that  the  Constitution  must  govern  and  that  in  its  pro 
visions  alone  could  Congress  find  authority  for  legislating  for 
the  Louisiana  Territory.  There  was  no  "unwritten  Constitu 
tion"  to  which  Congress  could  appeal ;  there  was  no  "higher 
law."  Webster  and  Benton  were  wrong,  and  any  reasoning 
with  their  position  as  a  premise  will  lead  to  error.  Curtis' 
great  premise,  "whatsoever  rules  Congress  deems  needful 
are  needful,"  was  a  great  blunder.  From  the  latest  session  of 
our  Supreme  Court,  from  our  famous  insular  cases  back  to  the 
Dred  Scott  Case,  legislation  by  Congress  for  a  Territory  has 
often  been  pronounced  unconstitutional,  and  suppressed  by 
the  court. 

Curtis  made  another  fatal  blunder,  and  now  and  then 
other  judges  before  and  since  him  seem  to  have  fallen  into 
the  same  pit.  Curtis  argued  that  Congress  might  do  concern 
ing  any  subject  in  a  Territory  what  a  State  within  its  juris 
diction  might  do  by  legislation  over  the  same  subject.  Here 
and  there  through  the  decisions  upon  Congressional  power 
are  dicta  to  the  same  effect.  In  the  American  Insurance  Com 
pany  vs.  Canter30  Chief  Justice  Marshall  seems  to  have  said 
that  acquired  territory  is  subject  to  absolute  control  by  Con- 

28  In  Downs  vs.  Bidwell,  182  U.  S.  237,  Mr.  Justice  White  gives  an  elaborate 
history  of  the  way  in  which  the  Louisiana  Purchase  became  a  part  of  the  United 
States.  On  territorial  power  s'ee  also  Mormon  Church  Case,  136  U.  S.  i;  Burns  vs. 
U.  S.,  (1904)  194  U.  S.  491;  Callan  vs.  Wilson,  (1888)  127  U.  S.  550;  Reynolds 
vs.  U.  S.,  (1878)  98  U.  S.  145;  Laschi  vs.  Territory,  (1857)  i  Wrash.  Ter.  13. 


29  19  Howard,  542. 

30  i    Peters,   541. 


OF    THE    DRED    SCOTT    DECISION 


gress  "on  such  terms  as  the  new  master  shall  impose;"  and 
in  the  Mormon  Church  case,31  Judge  Bradley  declared:  "The 
power  of  Congress  over  the  Territories  of  the  United  States 
is  general  and  plenary,  arising  from  and  incidental  to  the 
right  to  acquire  the  territory  itself,  and  from  the  powers  given 
by  the  Constitution  to  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the 
United  States."  And  in  a  comparatively  recent  case  involving 
the  validity  of  a  divorce,  the  language  of  the  court  in  decid 
ing  another  divorce  case,  Barber  vs.  Barber,32  is  quoted  with 
apparent  approbation  :  "Having  entire  dominion  and  sover 
eignty  over  Territories  Congress  has  full  legislative  power 
over  all  subjects  upon  which  the  legislature  of  the  State  might 
legislate  within  the  State;  and  may,  at  its  discretion,  entrust 
that  power  to  the  legislative  assembly  of  a  Territory."33 

But,  as  we  have  seen,  such  statements  as  these  are  now 
indisputably  overruled  by  the  settled  doctrine  as  we  have  seen 
it  announced  in  the  leading  and  representative  decisions.  The 
error  of  the  apparent  view  here  and  there  thus  interjected  into 
the  cases  and  as  expressed  by  Mr.  Justice  Curtis  is  also  unde 
niably  seen  when  we  remember  that  it  is  universally  admitted 
that  several  of  the  restrictions  of  the  Constitution,  among  them 
being  those  of  the  fifth  amendment  upon  which  Chief  Justice 
Taney  and  the  majority  relied,  are  not  prohibitions  on  State 
action,  but  are  limitations  exclusively  on  the  power  of  Con 
gress.  For  instance,  at  the  time  of  the  Dred  Scott  Case  and 
before  the  fourteenth  amendment  which  became  operative  in 
1868,  what  was  not  "due  process  of  law"  for  Congress  was 
not  necessarily  so  for  a  State.34  So  following  the  admitted 
rule  and  applying  to  Congress  the  limitations  of  the  Constitu 
tion  in  legislating  for  a  Territory,  it  is  seen  that  what  would 
not  have  been  due  process  of  law  in  destroying  vested  rights 

3i  136  U.  S.  42. 
M  21    Howard,    582. 

33  201    U.    S.    308,   citing   Cope   vs.    Cope,    137    U.    S.    686.      To    the    same    effect    is 
Simms     vs.      Simms      (1899),      175     U.      S.      162,      168,      also     a      divorce     case,     citing 
Shively  vs.  Bowlby,  152  U.  S.  26,  and  cases  cited,  and  Utter  vs.  Franklin,  172   U.  S.  423. 

34  See   chapter,    "Due   Process   of    Law." 


I3O  LEGAL  AND  HISTORICAL  STATUS 

in  slave  property  in  a  Territory,  would  have  been  due  process 
of  law,  so  far  as  the  Constitution  was  concerned,  in  a  State, 
for  the  very  simple  reason  that  that  provision  of  the  Constitu 
tion  was  not  then  a  prohibition  upon  the  State  and  was  a  limi 
tation  exclusively  upon  Congress. 

Then,  the  Constitution  of  the  United  States  being  applica 
ble  and  the  sole  guide,  what  did  that  great  charter  say  as  to 
the  power  of  Congress  over  property  in  a  Territory:  specifi 
cally,  in  the  Louisiana  Territory  and  over  slave  property? 
What  was  the  letter  and  "spirit"  of  the  Constitution  concern 
ing  slave  property?  How  should  Taney  have  interpreted  the 
Constitution  in  determining  the  power  of  Congress  over  slave 
property  in  a  Territory?  Should  he  have  construed  it  as  he 
perhaps  felt  it  ought  to  have  been,  or  as  moralists  felt  it  ought 
to  have  been,  or  as  its  FRAMERS  MEANT  IT  TO  BE  AT  ITS  CREA 
TION. 

Taney  and  with  him  the  court,  applying  to  Congress  the 
limitations  of  the  Constitution,  gave  that  great  charter  the 
force  which  they  believed  its  framers  intended  and  which  it 
was  meant  to  have  when  adopted  by  the  people  of  the  several 
States.  In  that  method  he  has  been  steadily  followed,  as  was 
shown  in  chapter  one,  as  he  followed  the  earlier  precedents. 
One  of  the  later  of  these  instances  is  found  in  the  case  of 
South  Carolina  vs.  the  United  States,  decided  on  December  4, 
1905.  Mr.  Justice  Brewer,  delivering  the  opinion  of  the 
court  in  that  case  and  speaking  for  the  court  says :  "The 
Constitution  is  a  written  instrument.  As  such  its  meaning 
does  not  alter.  That  which  it  meant  when  adopted  it  means 
now  ...  as  said  by  Mr.  Chief  Justice  Taney  in  Dred  Scott 
vs.  Sanford,  19  Howard  393,  426: 

'"It  is  not  only  the  same  in  words,  but  the  same  in  mean 
ing,  and  delegates  the  same  powers  to  the  government,  and 
reserves  and  secures  the  same  rights  and  privileges  to  the 
citizens ;  and  as  long  as  it  continues  to  exist  in  its  present 
form,  it  speaks  not  only  in  the  same  words,  but  with  tht  same 
meaning  and  intent  with  which  it  spoke  when  it  came  from 


OF    THE    DRED    SCOTT    DECISION 

the  hands  of  its  framers,  and  was  voted  on  and  adopted  by 
the  people  of  the  United  States.  Any  other  rule  of  con 
struction  would  abrogate  the  judicial  character  of  this  court, 
and  make  it  the  mere  reflex  of  the  popular  opinion  or  passion 
of  the  day.'"35 

\Yith  this  rule  in  mind,  a  rule  often  approved  by 
all  departments  of  our  governments,  let  us  follow  briefly 
the  reasoning  of  the  court  as  Taney  applies  the  Constitution 
to  Congress  in  determining  its  power  to  legislate  over  rights 
of  slave  property  in  a  Territory.  Says  the  Chief  Justice  speak 
ing  for  the  court  upon  this  point : 

"The  principle  upon  which  our  governments  rest,  and 
upon  which  alone  they  continue  to  exist,  is  the  union  of  States, 
sovereign  and  independent  within  their  own  limits  in  their 
internal  and  domestic  concerns,  and  bound  together  as  one 
people  by  a  general  government,  possessing  certain  enumer 
ated  and  restricted  powers,  delegated  to  it  by  the  people  of 
the  several  States,  and  exercising  supreme  authority  within 
the  scope  of  the  power  granted  to  it,  throughout  the  dominion 
of  the  United  States.  .  .  .  Whatever  it  acquires,  it  acquires 
for  the  benefit  of  the  people  of  the  several  States  who  created 
it  ...  and  when  a  Territory  becomes  a  part  of  the  United 
States,  the  Federal  Government  enters  into  possession  in  the 
character  impressed  upon  it  by  those  who  created  it.  ... 
The  Territory  being  a  part  of  the  United  States,  the  govern 
ment  and  the  citizen  both  enter  it  under  the  authority  of  the 
Constitution,  with  their  respective  rights  defined  and  marked 
out ;  and  the  Federal  Government  can  exercise  no  power  over 
his  person  or  property,  beyond  what  that  instrument  confers 
nor  lawfully  deny  any  right  which  it  has  reserved.  .  .  .  For 
example,  no  one,  we  presume,  will  contend  that  Congress  can 
make  any  law  in  a  Territory  .  .  .  abridging  the  freedom 
of  speech  or  of  the  press,  or  the  right  of  the  people  of  the 
Territory  peaceably  to  assemble,  and  to  petition  the  govern 
ment  for  the  redress  of  grievances.  Nor  can  Congress  deny 


33  199  U.   S.  448-9-50.      See  also  p.   472. 


I32  LEGAL  AND  HISTORICAL  STATUS 

to  the  people  the  right  to  keep  and  bear  arms,  nor  the  right  to 
trial  by  jury,  nor  compel  any  one  to  be  a  witness  against 
himself  in  a  criminal  proceeding. 

"These  powers,  and  others,  in  relation  to  rights  of  per 
son,  which  it  is  not  necessary  here  to  enumerate,  are,  in  ex 
press  and  positive  terms,,  denied  to  the  general  government; 
and  the  rights  of  private  property  have  been  guarded  with 
equal  care.  Thus  the  rights  of  property  are  united  with  the 
rights  of  person,  and  placed  on  the  same  ground  by  the  fifth 
amendment  of  the  Constitution,  which  provides  that  no  person 
shall  be  deprived  of  life,  liberty,  and  property,  without  due  pro 
cess  of  law.  And  an  act  of  Congress  \vhich  deprives  a  citizen 
of  the  United  States  of  his  liberty  or  property,  merely  because 
he  came  himself  or  brought  his  property  into  a  particular  Ter 
ritory  of  the  United  States,  and  who  had  committed  no  offense 
against  the  laws,  could  hardly  be  dignified  with  the  name  of 
due  process  of  law. 

"So,  too,  it  will  hardly  be  contended  that  Congress  could 
by  law  quarter  a  soldier  in  a  house  in  a  Territory  without 
consent  of  the  owner,  in  time  of  peace;  nor  in  time  of  war, 
but  in  a  manner  prescribed  by  law.  Nor  could  they  by  law 
forfeit  the  property  of  a  citizen  in  a  Territory  who  was  con 
victed  of  treason,  for  a  longer  period  than  the  life  of  the  person 
convicted ;  nor  take  private  property  for-  public  use  without 
just  compensation. 

"The  powers  over  person  and  property  of  which  we 
speak  are  not  only  not  granted  to  Congress,  but  are  in  express 
terms  denied,  and  they  are  forbidden  to  exercise  them.  And 
this  prohibition  is  not  confined  to  the  States,  but  the  words 
are  general,  and  extend  to  the  whole  territory  over  which  the 
Constitution  gives  it  power  to  legislate,  including  those  por 
tions  of  it  remaining  under  territorial  government,  as  well 
as  that  covered  by  States.  It  is  a  total  absence  of  power  every 
where  within  the  domain  of  the  United  States,  and  places  the 
citizens  of  a  Territory,  so  far  as  those  rights  are  concerned, 
on  the  same  footing  with  citizens  of  the  States  and  guards 


OF    THE    DRED    SCOTT    DECISION  133 

them  as  firmly  and  plainly  against  any  inroads  which  the 
general  government  might  attempt,  under  the  plea  of  im 
plied  or  incidental  powers.  .  .  . 

"It  seems,  however,  to  be  supposed,  that  there  is  a  differ 
ence  between  property  in  a  slave  and  other  property,  and 
that  different  rules  may  be  applied  to  it  in  expounding  the  Con 
stitution  of  the  United  States.  And  the  laws  and  usages  of 
nations,  and  the  writings  of  eminent  jurists  upon  the  relation 
of  master  and  slave  and  their  mutual  rights  and  duties,  and  the 
powers  which  governments  may  exercise  over  it,  have  been 
dwelt  upon  in  the  argument. 

"But  in  considering  the  question  before  us,  it  must  be 
borne  in  mind  that  there  is  no  law  of  nations  standing  between 
the  people  of  the  United  States  and  their  government,  and 
interfering  with  their  relation  to  each  other.  The  powers  of 
the  government,  and  the  rights  of  the  citizen  under  it,  are  pos 
itive  and  practical  regulations  plainly  written  down.  The 
people  of  the  United  States  have  delegated  to  its  certain  enum 
erated  powers,  and  forbidden  it  to  exercise  others.  It  has  no 
power  over  the  person  or  property  of  a  citizen  but  what 
the  citizens  of  the  United  States  have  granted.  And  no  laws 
or  usages  of  other  nations,  or  reasoning  of  statesmen  or 
jurists  upon  the  relations  of  master  and  slave,  can  enlarge  the 
powers  of  the  government  or  take  from  the  citizens  the  rights 
they  have  reserved.  .  .  . 

"Now,  as  we  have  already  said  in  an  earlier  part  of 
this  opinion,  upon  a  different  point,  the  right  of  property  in 
a  slave  is  distinctly  and  expressly  affirmed  in  the  Constitution. 
The  right  to  traffic  in  it,  like  an  ordinary  article  of  merchan 
dise  and  property,  was  guaranteed  to  the  citizens  of  the  United 
States,  in  every  State  that  might  desire  it,  for  twenty  years. 
And  the  government  in  express  terms  is  pledged  tc  protect 
it  in  all  future  time,  if  the  slave  escapes  from  his  owner. 
This  is  done  in  plain  words — too  plain  to  be  misunderstood. 
And  no  word  can  be  found  in  the  Constitution  which  gives 
Congress  a  greater  power  over  slave  property,  or  which  en- 


134  LEGAl,  AND  HISTORICAL  STATUS 

titles  property  of  this  kind  to  less  protection  than  property  of 
any  other  description.  The  only  power  conferred  is  the  power 
coupled  with  the  duty  of  guarding  and  protecting  the  owner 
in  his  right. 

"Upon  these  considerations,  it  is  the  opinion  of  the 
court  that  the  act  of  Congress  which  prohibited  a  citizen 
from  holding  and  owning  property  of  this  kind  in  territory 
of  the  United  States  north  of  the  line  therein  mentioned,  is 
not  warranted  by  the  Constitution,  and  is  therefore  void;  and 
that  neither  Dred  Scott  himself,  nor  any  of  his  family,  were 
made  free  by  being  carried  into  this  territory;  even  if  they  had 
been  carried  there  by  the  owner,  with  the  intention  of  becoming 
a  permanent  resident."36 

Therefore  we  see  that  in  its  opinion  the  court  applied  to 
Emerson  who  had  carried  Scott  into  the  Louisiana  Purchase 
Territory  the  same  principles  that  the  courts  have  applied  to 
citizens  in  Alaska,  in  Utah  and  in  all  the  Territories  incorpor 
ated  into  the  United  States ;  for  such  questions  as  the  rights 
of  the  citizen  and  his  rights  to  property  are  defined  by  the 
Constitution  and  protected  by  the  judicial  department  of  the 
government.  They  are  not  political  in  the  sense  that  they 
belong  exclusively,  not  subject  to  final  determination  by  the 
courts,  to  Congress.  The  distinction  between  political  and 
judicial  questions  is  clear  and  not  difficult  to  see.  The  politi 
cal  department  of  government  determines  when  and  to  what 
country  the  jurisdiction  of  the  government  applies.  But  the 
Territory  having  become  a  part  of  the  United  States,  the 
judicial  branch  has  the  power  finally  to  determine  the  nature 
of  that  jurisdiction  that  is  to  be  exercised.  The  Constitution 
applies  to  Congress  in  whatsoever  Territory  it  may  legislate 
touching  the  personal  and  property  rights  of  those  within 
that  country.  But  the  judicial  department  is  charged  with  the 
duty  of  determining  the  extent  of  the  legislative  power,  con 
fining  the  legislature  to  such  powers  as  are  given  it  by  the 
Constitution.  For  instance:  In  1839  the  question  arose  in  our 


30  19  Howard,  447  to  452. 


OF    THE    DRED    SCOTT    DECISION  135 

Supreme  Court  as  to  the  jurisdiction  of  Buenos  Ayres  over 
the  Falkland  islands,  and  Judge  McLean  for  the  court  decided 
that  that  was  a  political  question.37  In  the  same  year  Chief 
Justice  [Marshall  said :  "In  a  controversy  between  two  nations 
concerning  national  boundary,  it  is  scarcely  possible  that  the 
courts  of  either  should  refuse  to  abide  by  the  measures  adopted 
by  its  own  government."38  Cooley  cites  others:  the  restora 
tion  of  peace  ;39  the  de  facto  or  rightful  government  of  another 
country;40  the  authority  of  foreign  ambassadors  and  min 
isters  ;41  the  admission  of  a  State  to  the  Union.42  Such  ques 
tions  belong  to  the  political  department  of  government.  So 
we  see  that  the  line  had  been  plainly  drawn  before  the  Dred 
Scott  decision.  Since  then  the  same  marks  of  distinction  have 
been  carefully  preserved;  as,  for  example  among  the  many 
cases,  Mr.  Justice  Gray,  delivering  the  opinion  of  the  court 
in  Jones  vs.  the  United  States,  said:  "Who  is  the  sovereign 
de  jure  or  de  facto  is  not  a  judicial,  but  a  political  question, 
the  determination  of  which  by  the  legislative  and  executive 
departments  of  any  government  conclusively  binds  the  judges, 
as  well  as  all  other  officers,  citizens  and  subjects  of  that  gov 
ernment/'43 

Benton  talked  about  the  court  having  "no  right  to  pass 
from  the  private  rights  of  an  individual  to  the  public  rights  of 
the  whole  body  of  the  people."44  Now  and  then  we  read  simi 
lar  statements  in  other  writings.  "But  the  Supreme  Court 
has  jurisdiction  only  for  the  purpose  of  determining  the  rights 
of  individuals,"  says  a  recent  writer.  The  trouble  with  such 
statements  is  that  they  are  too  narrow.  In  determining  the 
rights  of  an  individual,  the  first  question  is  to  determine  the 


37  13    Peters,    420. 

38  Foster  vs.   Neilson,    12   Peters,   313. 

39  U.    S.    vs.   Anderson,   9   Wall.    56. 

40  The   Hornet,   2  Abb    (U.    S.)    35;    Gelston   vs.   Hoyt,   2   Wfteaton,    246. 

41  Foster  vs.   Neilson,  2  Peters,  253. 

42  Luther  vs.   Borden,  7  Howard,  42;   Marsh  vs.  Borroughs,   i   Woods,  463. 

43  137  U.    S.   212.      See  also  Madison's  Works,   \  oi.   4;   144;    Polit.    Sci.   Qt.,   vol.    S, 
255- 

44  Hart's   Hist.   Told  by   Cont.,  vol.   4,    132. 


136  LEGAL  AND  HISTORICAL  STATUS 

power  of  the  legislature  over  him,  and  how  far  and  with  refer 
ence  to  what  and  in  what  way  that  power  must  be  exercised. 
"The  public  rights  of  the  whole  body  of  the  people"  are  such 
only  as  are  defined  in  the  Constitution ;  and  they  must  be  de 
termined  and  clearly  defined  before  the  "private  rights  of  an 
individual"  can  be  preserved  and  protected.  Benton  and  those 
who  follow  him  in  this  doctrine  are  trying  to  find  powers  in 
the  Federal  Government  not  limited  by  the  Constitution,  not 
defined  by  that  instrument,  and  which  exist  outside  of  and  be 
yond  it  in  some  such  sense  as  the  English  talk  of  their  con 
stitution,  a  system  of  government  where  the  courts  can  deter 
mine  no  act  of  Parliament  an  unconstitutional  measure,  "the 
Constitution  of  the  American  Empire,"  as  one  writer  recently 
endeavored  to  find.  Such  doctrine  is  entirely  out  of  harmony 
with  both  the  letter  and  spirit  of  the  American  government; 
and  badly  out  of  line  with  the  principles  long  since  with  us 
settled  and  become  axiomatic.  In  this  abnormal  view  of  our 
government  and  of  the  functions  of  our  Constitution,  political 
questions  would  be  quite  different  to  what  they  are  in  the  light 
of  settled  principles, — and  by  the  latter  alone  courts  are  guid 
ed.  When  changes  be  needed  in  the  American  government 
the  Constitution  is  amended  by  written  declarations  made  by 
the  people. 

When  in  the  Dred  Scott  opinion  the  court  decided  the 
Missouri  Compromise  void  because  Congress  had  no  power  to 
enact  such  a  measure,  it  passed  not  into  the  realm  of  political 
questions;  and,  more  than  that,  it  established  the  first  great 
precedent  for  measuring  and  for  determining  the  power  of 
Congress  over  property  rights  of  an  individual  in  a  Territory. 
Upon  and  in  harmony  with  this  precedent  has  grown  the 
now  recognized  American  doctrine.  The  correctness  and 
wisdom  of  the  rule  thus  formulated  is  now  a  distinct  feature 
of  our  government.  Taney  and  the  concurring  majority 
showed  not  alone  a  clear  grasp  of  the  fundamentals  of  our 
government,  but  they  evinced  as  well  a  high  order  of  moral 


OF    THE    DRED    SCOTT    DECISION  137 

courage  in  thus  stepping  boldly  to  the  front  against  popular 
feeling  throughout  the  northern  section  of  the  United  States. 

The  orthodox  method  of  interpreting  the  Constitution 
should  be  guarded  with  zealous  care  by  the  American  people. 
Here  and  there  in  high  places  are  a  few  who  yet  advocate 
the  amendment  of  the  Constitution  by  judicial  construction. 
Such  a  condition  would  put  the  people  at  the  mercy  of  the 
courts ;  it  would  be  not  only  utterly  subversive  of  popular  gov 
ernment,  but  it  would  be  destructive  of  a  definite  guide  by 
which  to  order  individual  conduct.  In  the  Political  Science 
Quarterly,  Oct.,  1908,  Professor  John  W.  Burgess  of  Colum 
bia  University,  recently  Roosevelt  Exchange  Professor  in  the 
University  of  Berlin,  declares :  "The  question  is  not  that  of  a 
consolidation  in  principle  of  all  governmental  power  in  the 
hands  of  the  central  government,  but  a  liberal  interpretation 
of  the  powers  already  granted  by  the  Constitution  to  the  cen 
tral  government,  so  that  the  law  will  be  made  to  harmonize 
with  the  already  existing  conditions  in  the  world  of  fact. 
There  is  now  a  disharmony  between  the  law  and  the  fact.  .  .  . 
The  central  government  should  regulate  and  control  all  com 
merce  and  intercourse  except  only  such  incidents  thereto  as 
naturally  belong  to  the  local  police  organization.  It  should 
create  the  code  of  commercial  law,  fix  the  law  of  marriage 
and  divorce,  and  establish  the  general  principles  of  criminal 
law.  ...  At  least  so  much,  if  not  more,  belongs  to  its  natur 
al  domain." 

In  total  disregard  of  the  long  settled  rules  of  constitu 
tional  construction,  oblivious  of  the  American  doctrine  of  the 
fundamental  principles  of  popular  government,  this  distin 
guished  American  writer  and  teacher  would  get  what  he  wants 
by  pure  force  of  liberal  interpretation  by  the  courts.  He  is 
forced  to  this  position  in  part,  at  least,  because  "conditions  in 
the  world  of  fact"  are  such  that  he  could  not  incorporate  his 
views  of  the  "natural  domain"  of  the  Federal  Government  into 
the  Constitution  by  the  prescribed  method  of  amendment.  The 
American  people  differ  from  him  in  his  view  of  many  ques- 


138  LEGAL  AND  HISTORICAL  STATUS 

tions  of  government,  as  well  as  upon  his  method  of  attaining 
a  practical  application  of  his  views ;  and  were  the  Supreme 
Court  to  adopt  such  methods  as  he  advocates  and  then  take 
radical  views  of  the  sphere  of  the  central  government  we  would 
have  "a  disharmony  between  the  law"  and  the  people,  the  very 
strongest  possible  argument  for  leaving  fundamental  changes 
to  the  people  and  not  to  "a  liberal  interpretation"  by  the 
courts. 

There  is  no  doubt  of  the  fact  that  as  conditions  in  the 
world  of  fact  change,  changes  of  the  Constitution  will  be 
needed.  But  it  is  to  be  devoutly  hoped  that  the  American  peo 
ple  will  preserve  the  now  generally  accepted  and  orthodox 
method,  and  themselves  make  the  needed  changes.  The  liber 
ties,  rights,  and  privileges  of  our  people  have  been  and  are 
nobly  preserved  by  the  Supreme  Court  of  the  United  States 
from  the  earliest  days  down  to  the  present ;  and  it  behooves  us 
so  to  guard  that  sacred  forum  as  that  no  man  shall  be  ele 
vated  to  it  whose  influence  may  be  lent  to  an  insideous  under 
mining  of  the  American  Government. 

Therefore,  the  Presidency  of  the  United  States  and  com 
position  of  the  Senate,  the  appointive  power  to  that  highest 
judicial  office,  should  be  the  most  weighty  matter  with  the 
American  voter.  A  President  at  most  likely  will  serve  but 
eight  years;  Senators  are  directly  under  the  control  of  the 
people  of  the  several  States;  and  in  many  respects  the  acts 
of  each  are  subject  to  final  review  by  the  Supreme  Court ;  but 
the  members  of  that  court  have  life  tenures,  and  compose  the 
forum  of  last  resort  over  matters  involving  both  public  and 
private  rights  of  the  people. 


VIII. 

THE    MISSOURI  COMPROMISE   THE  ONLY  ANTI- 
SLAVERY  TERRITORIAL  ATTEMPT 
BY  CONGRESS  AFTER  THE 
CONSTITUTION. 

Although  no  one  claims  that  a  construction  of  the  Con 
stitution  by  Congress,  by  which  it  assumes  to  exercise  certain 
rights  of  legislation,  no  matter  when  begun  or  how  long  con- 
tinned,  is  to  be  taken  as  conclusive  of  the  existence  of  the 
right  to  thus  legislate,  yet  such  a  practical  construction,  "if 
nearly  contemporaneous  with  the  adoption  of  the  Constitution, 
and  continued  by  repeated  instances  through  a  long  series  of 
years/''  is  of  important  weight.  Such  a  construction  should 
be  taken  into  consideration  by  courts  when  passing  upon  the 
validity  of  that  legislation.  That  is,  of  course,  in  doubtful 
cases  or  where  the  intention  of  the  trainers  and  ratifiers  of 
the  Constitution  must  be  gathered  from  the  history  of  the 
times  and  from  the  fundamental  principles  of  the  law  in  force 
and  generally  recognized  at  the  time  of  the  adoption.  In  cases 
where  no  light  is  needed  to  see  what  the  Constitution  means, 
for  instance  should  Congress  very  early  have  enacted  an  ex 
post  facto  law,  the  exercise  of  the  power  could  not  override 
the  Constitution.  But  there  are  many  parts  of  the  Constitu 
tion  which  cannot  be  understood  except  in  the  light  of  the  his 
tory  of  the  time  and  the  law  at  the  formation,  amendment, 
or  adoption.  So  just  as  we  went  to  the  legislation  and  adju 
dications  of  the  States  for  light  upon  the  word  citizen  as  used 
in  the  Constitution,  Mr.  Justice  Curtis,  applying  the  same 
method  of  interpretation,  finds  what  he  holds  to  be  "eight 
distinct  instances,  beginning  with  the  first  Congress,  and  com 
ing  down  to  the  year  1848,  in  which  Congress  has  excluded 


I4O  LEGAL  AND  HISTORICAL  STATUS 

slavery  from  the  territory  of  the  United  States;  and  six  dis 
tinct  instances  in  which  Congress  organized  governments  of 
Territories  by  which  slavery  was  recognized  and  continued." 

Taking  these  instances  in  the  reverse  order  in  which  he 
gives  them,  we  find  that  those  in  which  he  declares  "Con 
gress  refused  to  interfere  with  slavery  already  existing  under 
the  municipal  law  of  France  or  Spain,  and  established  govern 
ments  by  which  slavery  was  recognized  and  allowed,"  are, 
the  acts  establishing  the  government  for  the  North  Carolina 
cession,  nowr  Tennessee,  1790;  that  establishing  Louisiana  in 
1804;  that  establishing  the  Territory  of  Orleans,  1805;  that 
organizing  the  Missouri  Territory  in  1812;  and  that  estab 
lishing  the  Territory  of  Florida  in  I822.1  Certainly  no  one 
will  contend  that  these  acts  of  themselves  are  of  important 
value,  even  were  they  what  Judge  Curtis  claimed  for  them. 
Their  testimony  is  of  a  purely  negative  nature,  and  their  per 
suasive  force  depends  upon  the  correctness  of  the  conten 
tion  as  to  the  positive  instances  upon  which  the  dissenting 
members  of  the  court  rested.  If  Congress  had  no  authority 
to  prohibit  slavery  in  these  Southern  Territories  where  the 
Constitution  found  it  already  recognized  by  law,  when  those 
countries  came  under  the  jurisdiction  of  the  United  States,  its 
non-interference  was  no  more  than  it  must  do,  and  does  not 
argue  that  it  might  have  done  what  it  did  not  try  to  do. 
Southern  owners  of  slave  property  were  minutely  cautious  to 
avoid  Congressional  interference  with  their  property.  While 
they,  as  a  class,  desired  to  be  rid  of  slavery,  yet  they  pre 
ferred  that  question  left  entirely  within  local  control,  as  is 
well-known.  So  unless  we  have  other  important  evidence, 
any  language  implying  non-interference  with  property  rights 
in  slaves,  can  be  taken  as  no  more  than  done  out  of  abundance 
of  caution  growing  out  of  suspicion  of  Federal  powrer  and  a 
fear  of  bad  faith  often  entertained  between  the  sections  and  on 
the  part  of  each  in  the  earlier  days. 

Turning,    then,    to    what   Judge    Curtis    regards    as   the 


19   Howard,   619. 


OF    THE    DRED    SCOTT    DECISION  14! 

distinct,  positive  acts  of  practical  construction  of  the  Consti 
tution  by  Congress  and  by  the  Presidents  who  signed  the  regu 
lations,  we  find  that  he  begins  with  the  act  of  August  7,  1789, 
giving  life  to  what  without  it  all  admit  would  have  been 
the  void  and  inoperative  Ordinance  of  July  13,  1787,  and 
includes  the  acts  establishing  the  governments  of  Indiana 
Territory  in  1800;  the  provision  for  the  government  of  Michi 
gan  Territory  in  1805;  for  the  government  of  Illinois  Terri 
tory  in  1809;  for  the  government  of  the  Territory  of  Wiscon 
sin  in  1836;  for  the  government  of  the  Territory  of  Iowa  in 
1838;  and  that  of  1848  for  the  government  of  the  Territory 
of  Oregon.  These  he  regards  as  positive  anti-slavery  acts, 
in  addition  to  the  Missouri  Compromise  enacted  for  all  of  the 
Louisiana  Purchase  outside  of  Missouri  and  north  of  her 
north  boundary,  passed  in  1822. 

Curtis  says  that  the  act  of  August  7,  1789,  was  "that  the 
Ordinance  of  1787,  one  article  of  which  prohibited  slavery, 
'should  continue  to  have  full  effect.'"  That  is  not  the  wording 
of  the  act.  It  is  not  the  proper  legal  construction  of  the 
act.  Such  a  construction  is  not  borne  out  by  the  practical  opera 
tion  of  the  Ordinance  as  administered  and  enforced  under 
the  Constitution  both  locally  and  by  Congress.  As  we  all 
know,  the  Ordinance  had  been  passed  before  the  Constitu 
tion,  and,  as  Curtis  and  practically  all  American  scholars  ad 
mit,  without  authority  so  far  as  any  power  to  provide  such 
a  measure  lay  with  the  Congress  of  the  Confederation.  It  was 
a  suggestion  by  the  representatives  of  the  States  in  the  Con 
gress,  and  purported  to  be  no  more  than  "articles  of  com 
pact  between  the  original  States  and  the  people  and  States  in 
said  territory,"  and  even  then  "alterable  by  common  con 
sent."2  As  forcibly  shown  by  some  of  the  judges  concurring 
in  the  opinion  in  the  Scott  case,  no  one  questions  that  the 
States  had  ample  power  to  make  any  agreement  upon  this 
subject  they  saw  proper;  and  whatever  authority  the  Ordi 
nance  had  before  the  ratification  of  the  Constitution  grew 


2  Poore,    Charters   and    Consts. ;    Van   Broclin   vs.    Tenn.,    117    U.    S.    159. 


142  LEGAL  AND  HISTORICAL  STATUS 

out  of  the  mutual  consent  of  the  States.     After  the  ratifica 
tion  of  the  Constitution  the  act  which  gave  it  life,  gave  it  no 
power  which  could  not  have  been  conferred  by  Congress  had 
an  absolutely  new  provision  in  words   all  its  own  been  en 
acted.    At  any  rate  what  the  Congress  under  the  Confederation 
could  do  is  no  light  upon  what  Congress  under  the  Constitu 
tion  can  do.     On  and  after  the  adoption  of  the  Constitution 
Congress  evidently  regarded  the  Northwest  Territory,  for  the 
government  of  which  the  Ordinance  had  been  made  by  the 
mutual  consent  of  the  States,  as  without  a  government,  because 
the  caption  of  the  act  of  August  7  says :  "An  act  to  provide 
for  the  government  of  the  territory  northwest  of  the  river 
Ohio."     Congress  knew  it  could  do  no  more  than  adapt  the 
Ordinance  "to  the  present  Constitution  of  the  United  States," 
and  in  this  same  preamble  it  plainly  said  so.     It  will  be  ad 
mitted  that  any  provision,   regulation,   or  prohibition  of  the 
Ordinance  that  Congress  by  the  Constitution  was  not  given 
power   to   enforce   necessarily   remained   inert    and   harmless. 
I  believe  it  further  will  be  admitted  that  Congress  \vas  given 
no  power  to  enforce  any  thing  in  the  Northwest   Territory 
that  it  could  not  enforce  in  any  Territory.     The  verbal  provis 
ions  of  the  Ordinance  depended  upon  the  power  of  Congress; 
and  the  power  of  Congress  depends  entirely  upon  the  Constitu 
tion.   No  intimation  in  the  Constitution  or  in  any  of  its  contem 
porary  history  is  made  either  in  favor  or  against  any  right  or 
power  peculiarly  in  relation  to  the  Territory  over  which  the 
Ordinance  as  originally  proposed  wras  to  have  had  jurisdiction. 
Even  if  by  the  Constitution  no  new  government  was  estab 
lished,  and  even  if  it  were  possible  for  an  agreement  or  en 
actment  or  whatever  we  may  regard  it  to  remain  "forever  un 
alterable"   regardless   of   future   changes   of   the   government 
or  future  enactments,  as  a  few  have  thought  concerning  the 
Ordinance,  misguided  to  a  narrow  view  by  the  meaningless 
word  "forever,"  it  is  certain  that  any  agreement  between  the 
States,  or  any  enactment  by  the  legislature  of  a  nation  or  of 
the  States,  be  that  as  it  may,  must  fail  unless  the  Constitu- 


OF    THE    DRED    SCOTT    DECISION  143 

tion  provided  some  instrument  for  its  preservation  and  en 
forcement.  Therefore  the  situation  resolves  itself  to  the 
one  question :  Did  the  Constitution  give  Congress  any  power 
over  property  rights  attaching  to  slaves  in  a  Territory;  and  if 
so,,  what  is  it  and  in  what  part  of  the  Constitution  found  ? 

Important  light  is  furnished  on  this  question  by  the 
preamble  to  the  articles  of  the  Ordinance.  Having  provided 
for  the  temporary  government  of  the  country,  the  document 
recites : 

"And  for  extending  the  fundamental  principles  of  civil 
and  religious  liberty,  which  form  the  basis  whereon  these 
republics,  their  laws,  and  constitutions,  are  erected;  to  fix 
and  establish  those  principles  as  the  basis  of  all  laws,  constitu 
tions,  and  governments  which  forever  hereafter  shall  be  formed 
in  the  said  territory;  to  provide,  also  for  the  establishment 
of  States,  and  permanent  government  therein,  and  for  their 
admission  to  a  share  in  the  Federal  councils  on  an  equal  foot 
ing  with  the  original  States,  at  as  early  periods  as  may  be 
consistent  with  the  general  interest : 

"It  is  hereby  ordained  and  declared,  by  the  authority 
aforesaid,  That  the  following  articles  shall  be  considered  as 
articles  of  compact  between  the  original  States  and  the  people 
and  States  in  the  said  territory,  and  forever  remain  unalter 
able,  unless  by  common  consent." 

It  is  patent,  if  the  English  language  had  the  same  mean 
ing  then  it  has  now,  that  the  framers  of  that  instrument  did 
not  think  they  were  wielding  the  sovereign  power  of  a  nation, 
for  they  called  the  States  "these  republics;"  and  they  regarded 
the  Ordinance  as  a  "compact"  between  republics,  sovereign,  in 
dependent  and  distinct  nationalities.  But  be  that  as  it  may. 
What  I  wish  to  emphasize  here  is  that  this  Ordinance  specifical 
ly  declares  that  it  was  to  provide  for  the  establishment  of 
States,  and  that  the  articles,  the  sixth  and  last  of  which  was  the 
prohibition  against  involuntary  servitude,  "shall  be  consid 
ered  as  articles  of  compact  between  the  original  States  and 
people  and  States  in  the  said  territory."  It  purported  to  bind 


144  LEGAL  AND  HISTORICAL  STATUS 

the  future  States  to  be  carved  out  of  that  country,  just  as 
much  as  it  did  to  bind  the  Territories  that  were  to  precede 
the  States.  But,  as  we  have  seen,  the  highest  courts  of  all 
the  States  once  a  part  of  that  great  Territory,  the  Supreme 
Court  of  the  United  States,  and  all  important  American  au 
thority,  have  decided  that  the  Ordinance  or  any  part  thereof  is 
not  obligatory  or  binding  upon  any  of  those  States.  And 
this  is  true  for  the  reason  that,  whether  the  Constitution  es 
tablished  a  new  government  -or  not,  after  the  ratification  of 
the  Constitution  such  a  government  existed  as  that  the  States 
were  absolutely  independent  and  sovereign  as  to  all  things 
not  within  the  peculiar  jurisdiction  of  the  Federal  Govern 
ment  as  denned  by  the  Constitution.  So  that,  after  all,  the 
whole  question  in  all  of  its  phases  depends  upon  what  powers 
the  Constitution  has  conferred  upon  Congress.  Finding  it 
does  not  bind  the  States  as  its  words  purport  to  do,  we  need 
not  expect  a  literal  interpretation  or  application. 

Hence,  clearly,  it  is  not  by  the  words  of  the  Ordinance 
that  we  must  be  guided,  no  more  than  did  it  verbally  author 
ize  the  States  of  that  territory  to  enact  e.v  post  facto  laws, 
pass  bills  of  attainder,  or  provide  laws  impairing  the  obli 
gations  of  contracts.  Had  that  Ordinance  authorized  a  Ter 
ritory  for  which  it  provided,  to  determine  questions  in  trials 
of  all  common  law  causes  by  a  jury  of  six,  it  is  very  clear 
that  under  the  Constitution  as  interpreted  by  us,  such  a  pro 
vision  would  have  been  the  most  inert  surplusage.  The  Con 
stitution  has  superseded  all  other  authority,  enactment,  com 
pact  or  agreement,  as  these  patent  instances  readily  show  us. 

Then,  was  the  practical  construction  given  the  verbal  anti- 
slavery  article  of  the  Ordinance  such  as  indicated  a  belief  that 
Congress  had  the  power  under  the  Constitution  to  preserve, 
continue,  give  life  to  and  enforce  the  anti-slavery  article? 
Mr.  Justice  Curtis  answered  in  the  affirmative.  He  has  an  ex 
tensive  following,3  and  if  there  were  no  other  reason,  that 
wTould  be  sufficient  to  command  our  careful  attention.  In  our 


8  For    instance,    see    Burgess,    The    Civil    War   and    the    Constitution. 


OF    THE    DRED    SCOTT    DECISION  145 

examination  of  the  several  instances  upon  which  this  reliance 
has  been  placed,  it  will  assist  us  to  get  before  the  mind  the 
exact  wording  of  the  several  acts  of  Congress  in  establishing 
these  various  territorial  governments  furnishing  what  are 
regarded  as  the  positive  slavery  prohibitions. 

The  first  is  the  act  establishing  the  government  of  the 
Indiana  Territory,  May,  7,  1800.  Section  two  of  that  bill 
declares  :  "That  there  shall  be  established  within  the  said  Terri 
tory  a  government  in  all  respects  similar  to  that  provided 
by"  the  Ordinance  of  July  13,  1787,  for  the  government  of 
the  Northwest  Territory;  "and  the  inhabitants  thereof  shall 
be  entitled  to  enjoy  all  and  singular  the  rights,  privileges  and 
advantages  granted  and  secured  to  the  people  by  the  said 
Ordinance."4  The  second  is  the  act  of  January  n,  1805, 
establishing  the  territorial  government  of  Michigan  out  of 
territory  severed  from  Indiana.  The  same  language  is  used, 
arid  in  addition  thereto  is  mentioned  the  act  of  August  7, 
1789,-  which  was  the  act  of  Congress  giving  validity  to  the 
Ordinance  "as  adapted  to  the  present  Constitution  of  the 
United  States."5  As  the  third  we  have  the  act  establishing 
the  territorial  government  for  Illinois,  again  dividing  In 
diana,  which  follows  the  same  words  used  in  the  act. of  Jan 
uary  n,  1805,  establishing  the  Michigan  Territory.6  The 
fourth  is  the  establishment  of  the  government  of  the  Terri 
tory  of  Wisconsin.  Section  twelve  refers  to  the  Ordinance 
in  words  used  in  the  earlier  acts,  and  declares  the  inhabitants 
entitled  to  "enjoy  all  and  singular  the  rights,  privileges,  and 
advantages"  conferred  by,  "and  to  be  subject  to  all  con 
ditions  and  restrictions  and  prohibitions"  imposed  upon, 
the  people  of  the  Northwest  Territory  by  the  Ordinance.7 
We  find  the  fifth  in  the  act  establishing  the  government  of 
Iowa,  June  12,  1838,  dividing  Wisconsin.  Section  twelve 
conferred  upon  the  inhabitants  "all  rights,  privileges  and  im- 


4  2   Stats,   at  Large,   59. 

5  Ib.    309. 

6  See  sec.   two,   2   Stats,  at  Large,   515. 

7  5    Ib.    15- 


146  LEGAL  AND  HISTORICAL  STATUS 

munities  heretofore  granted  and  secured  to  the  Territory  of 
Wisconsin  and  to  its  inhabitants.''8  In  the  sixth,  the  bill  provid 
ing  a  government  for  the  Territory  of  Oregon,  August  14, 
1848,  we  find  the  same  language  used  in  the  other  acts,  apply 
ing  the  rights,  benefits,  immunities,  and  restrictions  imposed 
upon  the  people  of  the  Northwest  by  the  Ordinance.9  With  the 
Ordinance,  Judge  Curtis  and  those  who  concur  with  him,  find 
what  they  regard  as  the  eight  positive  prohibition  of  slave 
property  in  a  Territory  in  the  Missouri  Compromise,  which 
is  found  in  the  eighth  section  of  the  bill  authorizing  the  peo 
ple  of  the  Missouri  Territory  to  form  a  constitution  and  State 
government,  and  for  the  admission  of  such  State  into  the 
Union.  As  we  know  the  slavery  prohibition  was  specifically 
applicable  to  the  territory  acquired  from  France,  being  north 
of  Missouri,  and  north  of  thirty-six  degrees  thirty  minutes 
north  latitude.10 

Reading  the  Missouri  Compromise  act,  we  are  most  forci 
bly  struck  with  the  departure  from  the  wording  of  the  other 
acts,  both  prior  and  subsequent  thereto.  Neither  before  it 
nor  subsequent  to  it  in  establishing  the  government  of  any 
Territory  did  Congress  find  the  courage  to  use  the  same  lan 
guage.  One  sees  in  a  moment  that  to  find  the  legal  force  of  all 
the  other  acts  we  must  go  back  to  the  Ordinance,  and  not  only 
back  to  its  wording  but  we  must  find  its  restrictions  and  im 
munities  as  applied  to  and  enjoyed  by  the  people  of  the  original 
Territory,  to  find  the  "rights,  privileges  and  advantages 
granted  and  secured  to  the  people"  of  either  of  the  other  Ter 
ritories.  "The  restrictions,  conditions,  and  prohibitions  im 
posed  upon  the  people"  of  the  various  new  Territories  were 
such  only  as  had  been  imposed  under  the  Constitution  upon  the 
people  in  the  Northwest  Territory.  But  the  Missouri  bill 
left  nothing  to  be  determined  from  the  practical  operation  of 
the  Ordinance  under  the  Constitution.  It  says :  "That  in  all 


«Ib.     239- 

9  9   Ib.    548. 

10  3  Ib.   548. 


OF    THE    DRED    SCOTT    DECISION  147 

that  Territory  ceded  by  France  to  the  United  States,,  under  the 
name  of  Louisiana,  which  lies  north  of  thirty-six  degrees  thir 
ty  minutes  north  latitude,  not  included  within  the  limits  of  the 
State  contemplated  by  this  act,  slavery  and  involuntary  servi 
tude  other  than  in  the  punishment  of  crimes,  whereof  the  party 
shall  have  been  duly  convicted,  shall  be  and  is  hereby  forever 
prohibited:  Provided  always,  That  any  person  escaping  into 
the  same  from  whom  labor  or  service  is  lawfully  claimed,  in 
any  State  or  Territory  of  the  United  States,  such  fugitive  may 
be  lawfully  reclaimed." 

Congress,  evidently,  saw  that  after  the  Constitution  there 
was  some  question  as  to  its  authority  to  destroy  slave  property 
in  a  Territory  or  to  forbid  its  presence  there.  It  evidently 
did  not  mean  to  put  itself  in  the  position  of  determining  the 
force  of  the  Ordinance  as  adapted  to  the  Constitution,  and 
so  each  time,  the  Missouri  bill  being  the  one  exception,  it  ap 
plied  to  the  new  Territory  the  restriction  imposed  upon  or 
the  privilege  enjoyed  by  the  people  under  the  earlier  act 
or  acts.  Congress  simply  appropriated  whatever  of  the  Ordi 
nance  was  of  force  after  the  Constitution,  leaving  it  to  the 
people  to  make  the  application  and  to  the  courts  to  pass  upon 
the  force  of  that  practical  construction.  Did,  then,  the  verbal 
prohibition  against  slaA'ery  as  found  in  the  last  of  the  arti 
cles  of  the  Ordinance  impose  upon  the  people  of  the  North 
west  a  restriction?  How  was  it  enforced  by  the  territorial 
governments?  Did  the  Territories  affected  by  the  Ordinance 
legalize  and  enjoy  slave  property?  I^'so,  was  its  legal  and 
property  nature  maintained  by  the  courts?  \Ye  must  answer 
these  questions  to  find  whether  there  were  any  anti-slavery 
regulations  in  any  of  the  other  acts,  except  the  Missouri  bill, 
upon  which  Judge  Curtis  relied.  Other  than  the  mere  ap 
plication  to  the  new  Territories  as  formed  from  time  to  time, 
of  the  restrictions  enforced  under  the  earlier  governments, 
there  is  no  intimation  in  any  of  the  other  acts  as  to  slavery. 

Prior  to  any  division  of  the  Northwest  Territory  there 
was  no  adjudication  concerning  the  Ordinance  involving  the 


148  LEGAL  AND  HISTORICAL  STATUS 

property  rights  in  slaves  existing  at  its  promulgation.  "The 
sixth  article  of  the  compact,  the  slavery  article,  is  imperfectly 
understood,"  wrote  Dane  in  183 I.11  True  as  late  as  1831  it 
was  much  truer  in  the  earlier  years.  Some  of  the  anti-slavery 
people  argued  that  that  article  destroyed  existing  slavery  as 
well  as  made  future  slavery  impossible.  On  the  other  hand  the 
pro-slavery  people  and  some  of  the  most  learned  anti-slavery 
people  took  the  opposite  view.  On  its  face  it  looked  to  some 
of  the  numerous  slaveholders,  as  many  of  whom  were  from 
New  England  as  were  from  the  South,  then  in  the  North 
west,  that  they  were  about  to  be  deprived  of  their  lawful 
property  without  compensation  or  an  opportunity  to  be  heard. 
So  from  time  to  time  petitions  went  up  to  Congress  and 
to  the  authorities  of  the  Territory  asking,  the  one  side  that 
the  apparent  restriction  of  the  Ordinance  be  removed;  the 
other  that  it  remain  and  be  enforced.  Under  the  treaty  with 
France  the  theretofore  French  subjects,  then  holding  as  law 
ful  property  many  negro  slaves,  and  under  the  treaty  known 
as  Jay's  by  which  the  British  vacated  that  part  of  the  country, 
property  of  every  kind,  including  slaves,  was  guaranteed  to 
the  people.  As  Hinsdale  correctly  says,  these  guaranteed  to 
"settlers  their  property  of  every  kind  and  protection  therein, 
which  applied  to  slaves  as  well  as  other  property."12  Article 
II.  of  the  Ordinance  declared  that  the  inhabitants  were  to 
have  "judicial  proceedings  according  to  the  course  of  the 
common  law.  No  man  shall  be  deprived  of  his  liberty  or 
property  but  by  the  judgment  of  his  peers,  or  the  law  of 
the  land,  and  should  the  public  exigencies  make  it  necessary, 
for  the  common  protection,  to  take  any  person's  property  .  .  . 
full  compensation  shall  be  made  for  the  same."  So  it  is  not 
strange  that  we  find  the  best  legal  ability  of  that  section  quiet 
ing  the  fears  of  the  people  by  assuring  them  that  the  existing 
slave  property  was  not  and  should  not  be  touched.  Property 
in  slaves  was  just  as  much  legal  property  as  other  property, 

u  i    Indiana    Hist.    Soc.    Pubs.,    75. 

12  Old  Northwest,  3395  Dunn,  Hist.  Ind.  252;  Winsor,  The  Western  Movement, 
288;  Burnet,  Notes  (Cincinnati,  1847),  282,  n.  et  seq. ;  Parkman,  The  Old  Regime  in 
Canada,  254. 


OF    THE    DRED    SCOTT    DECISION  149 

and  to  have  destroyed  it  without  compensation  and  by  compact 
would  certainly  have  been  a  deprivation  of  property  without 
the  judgment  of  the  owner's  peers  and  contrary  to  the  course 
of  the  common  law.  Construing  each  article  of  the  Ordinance 
in  the  light  of  the  others  and  looking  at  it  as  a  whole,  it  is  plain 
to  see  that  when  St.  Clair,  the  governor  from  the  North,  and 
Harrison,  the  governor  from  the  South,  assured  the  people 
that  no  vested  property  rights  had  been  affected,  they  were  for 
tified  behind  the  Ordinance  as  it  appeared  in  the  light  of  the 
most  approved  rules  of  construction.  At  any  rate,  at  no  time 
were  the  property  rights  in  such  slaves  as  were  in  the  Terri- 
tory  at  its  formation  ever  disturbed. 

When  the  legislature  of  the  Territory  met  in  1790  it  was 
importuned  by  petition  from  citizens  to  provide  some  pro- 
slavery  law,  legalizing  the  admission  of  slaves  from  outside 
the  Territory,  thus  removing  any  doubt  upon  the  question, 
quieting  the  fears  of  those  holding  slaves,  and  at  the  same 
time  furnishing  a  source  of  much  needed  labor.  At  first  the 
legislature  declined  to  enterta.ii!  the  prayer;  but  in  November 
of  this  same  year  this  body,  a  majority  of  whom  were  North 
ern  men,  relented  and  appointed  a  committee,  directing  it 
to  prepare  a  bill  "declaring  the  admission  of  persons  of  color 
by  indenture."13  This  meant  nothing  less  than  the  most  com 
plete  slavery,  the  indenture  being  no  more  than  a  farce  as  to 
the  negro  and  a  formality  of  registration  as  to  the  master. 
Appointed  late  in  the  session,  the  committee,  though  acting  in 
all  good  faith,  did  not  get  its  report  filed  before  the  close  of 
the  session.  The  ablest  lawyers  of  the  Territory  and  among 
the  ablest  men  in  the  legislature  did  not  doubt  the  power  of  that 
body  to  provide  a  pro-slavery  law;  and,  as  Dunn  says,  "the 
appointment  of  the  committee  indicates  a  willingness  on  the 
part  of  the  legislature  to  permit  the  introduction  of  negroes 
in  a  servile  condition  until  some  other  consideration  inter 
vened."14 

April  30,  1802,  Congress  divided  the  original  Territory, 

13  St.    Clair    Papers,   vol.    2,   448;    Dunn,    Hist.    Ind. 

14  Hist.  Ind.,  293. 


15°  LEGAL  AND  HISTORICAL  STATUS 

authorizing  the  people  in  the  eastern  part  to  form  the  State 
of  Ohio.  Thus  as  to  the  Ohio  part  the  territorial  period 
ended  with  no  further  light  as  to  that  section  concerning  prop 
erty  rights  in  slaves  during  the  Territory.  But  not  so  as  to 
the  remaining  part  of  the  Territory,  thereafter  for  a  time 
known  as  Indiana.  For  the  first  few  years  of  the  Indiana 
Territory  the  governor  and  judges  of  the  court  constituted  the 
legislative  body.  To  these  the  people  now  turned  with  the 
result  that  Sept.  22,  1803,  a  law  was  enacted  declaring  slaves 
from  the  States  and  other  Territories  "under  contract  to  serve 
another  in  any  trade  or  occupation  shall  be  compelled  to  per 
form  such  contract  specifically  during  the  term  thereof."  Pen 
alties  by  lashes  were  provided  to  prevent  trading  with  slaves, 
and  negroes  were  forbidden  to  purchase  servants  other  than 
their  own  color.15  Petitions  both  pro  and  con  were  sent  to 
Congress,  but  that  arm  of  the  Federal  Government,  referring 
the  petitions  to  committees,  retained  a  respectful  acquiescense, 
while  the  legal  nature  of  the  slave  property  under  the  pro 
tection  of  the  Territory  steadily  strengthened. 

In  1803  the  first  elective  legislature  of  the  Territory  of 
Indiana  met.  It  lost  no  time  in  legalizing  the  acquisition  and 
holding  of  slave  property,  passing  the  famous  indenture  law 
which,  as  we  have  seen,  was  ratified  by  the  fundamental  law 
of  Illinois.  This  law  differed  in  no  essential  from  any  pro- 
slavery  law  in  so  far  as  it  legalized  the  property  rights  exist 
ing  in  the  slaves  affected  thereby  or  coming  thereunder.  Under 
it  any  -  person  owning  slaves  in  any  State  or  Territory,  or 
any  person  purchasing  negroes  or  mullatoes,  might,  such 
slaves  being  over  fifteen  years  old,  bring  them  into  the  Terri 
tory  :  ''provided,  the  owner  or  master  within  thirty  days  should 
take  them  before  the  clerk  and  have  an  indenture  between  the 
slave  and  his  owner  entered  upon  record  specifying  the  term 
that  the  slave  was  to  serve  his  master.  .  .  .  The  period  of  the 
indenture  was  usually  ninety-nine  years."  Children  born  of 
these  slaves  were  born  slaves,  but  the  law  provided  they  should 


13  Dunn,  Hist.   Ind.  315. 


OF    THE    DRED    SCOTT    DECISION  15! 

be  emancipated  after  a  term  of  years, — a  period  long  enough 
to  give  the  master  an  opportunity  to  conceal  the  actual  age 
until  the  best  years  of  life  had  been  spent  in  bondage;  after 
which,  of  course,  most  masters  did  not  object  to  be  rid  of  the 
liability  for  support.  Long  after  the  Territory  of  Indiana  had 
been  divided  into  and  had  become  the  States  of  Indiana,  Mich 
igan  and  Illinois,  slaves  were  held  in  each  as  property  under 
and  by  virtue  of  this  law  of  the  Territory.  The  pretence  of 
the  negro's  consent  was  the  merest  farce;  while  as  to  slaves 
under  fifteen  years  owners  and  masters  were  not  required  to 
resort  to  the  pretence  of  consent!  It  is  notorious  that  the  law 
was  supported  and  upheld  as  within  the  power  of  the  Terri 
tory  by  both  its  courts  and  the  courts  of  the  States.  This  is 
particularly  true  of  Illinois.  Slaves  were  being  held  under  this 
law  in  Michigan  as  late  as  i84/.irj  The  people  demanded  the 
law,  for  at  that  time  the  majority  were  pro-slavery.17  Dunn 
says :  "This  act  at  the  time  was  satisfactory  to  the  majority  of 
the  people."18 

In  1806  the  territorial  legislature  made  the  property 
nature  of  slaves  held  under  this  law  doubly  sure,  declaring 
them  property  subject  to  execution  and  sale  thereunder  just 
as  any  other  personal  property;  and  at  the  same  time  provided 
a  slave  code  similar  to  those  found  in  other  slave-labor  com 
munities. 

From  time  to  time  the  attention  of  Congress  was  called 
to  this  law  and  to  the  fact  that  slaves  were  being  introduced 
into  the  Territory  and  held  pursuant  thereto,  but  Congress 
wilfully  acquiesced.  It  not  only  acquiesced  but  actually  rati 
fied  the  power  of  the  Territory  and  sanctioned  the  legal  nature 
of  the  slave  property  existing  under  this  law  and  the  slave 
code  protecting  it  when  it  admitted  the  State  of  Illinois  into 
the  Union.  Having  been  detached,  Illinois  continued  the  in 
denture  law  and  slave  regulations,  adding  thereto  some  strin- 


16Hinsdale,    The   Old   Northwest,   341;    Edwards,   Hist.   111.;    Campbell,   Polit.    Hist. 
Mich.  246. 

17  E.   A.    Snively,    Slavery  in  111.,    (1901)    111.   Hist.   Lit.   Pubs'.,  No.   6,   52. 

18  Hist.   Ind.   330. 


152  LEGAL  AND  HISTORICAL  STATUS 

gent  anti-negro  laws.  Quite  a  number  of  negroes  were  being 
held  in  slavery  under  these  laws  at  the  time  that  section  applied 
for  permission  to  form  a  constitution  under  which  to  be  ad 
mitted  into  the  Union.  Congress  knew  this  fact.  Congress 
knew  that  for  years  the  verbal  anti-slavery  article  of  the  Or 
dinance  had  been  void  in  practical  operation ;  in  fact,  had  been 
nullified  by  both  the  legislature  and  the  courts.  April  18, 
1818,  Congress  granted  Illinois  permission  to  form  a  consti 
tution,  prescribing  that  such  constitution  and  the  State  govern 
ment  so  formed  should  be  "republican  and  not  repugnant  to 
the  Ordinance."  The  people  formed  their  constitution,  and 
in  article  six  thereof  it  was  specified  that  "neither  slavery  nor 
involuntary  servitude  shall  hereafter  be  introduced  into  this 
State;"  recognizing  the  legality  of  the  slave  property  then 
being  held  under  the  laws  of  the  Territory,  and  of  course  the 
validity  of  those  laws.  The  existing  slavery  was  untouched, 
beyond  all  question  as  is  admitted  and  as  has  been  decided  by 
the  highest  court  of  the  State.19  Children  born  of  the  slaves 
held  under  the  law  of  the  Territory  either  during  the  territor 
ial  period  or  after  were  born  slaves,  though  bound  to  serve 
for  only  a  term  of  years.20  Standing  upon  this  ratification, 
recognition,  and  continuance  of  the  legal  effect  of  the  law  of 
the  Territory,  the  people  applied  to  Congress  for  admission 
as  a  State.  On  December  3,  1818,  Congress  declared  this 
"constitution,  and  State  government,  so  formed,  is  republican, 
and  in  conformity  to  the  principles  of  the  Ordinance,"  and 
thereupon  the  slave  State  of  Illinois  became  ore  of  the  United 
States.  We  are  not  surprised  to  hear  Snively  in  1901  say: 
"We  can  scarcely  realize  that  our  own  State  once  tolerated 
slavery;  that  for  more  than  a  quarter  of  a  century  Illinois 
was  as  absolutely  a  slave  State  as  was  Mississippi. "21 

Now,  was  slave  property  repugnant  to  the  Ordinance? 
If  so  a  recognition  of  the  legal  nature  of  the  slave  property 


18  Phoebe  vs.   Jay,   Beecher's   Breese,   268;    Chaisser  vs.    Hargrove,    (1836)    i    Scar 
mon,   317;    William  vs.   Jarot,    (1844)    i    Gil.    120. 

20  Boone  vs.   Juliet,    i    Scammon,   258. 

21  Slavery  in  111.,  111.   Hist.    Lit.    Pubs.,    (1901)    No.   6,   52. 


OF    THE    DRED    SCOTT    DECISION  153 

existing  under  the  law  of  the  Territory,  would,  unquestionably, 
have  been  repugnant  to  the  Ordinance.  But  Congress  declared 
that  this  recognition  of  the  vested  property  rights  made  legal 
by  the  law  of  the  Territory,  was  "in  conformity  to  the  princi 
ples  of  the  articles"  of  the  Ordinance.  This  certainly  means 
the  principles  of  the  Ordinance  that  survived  after  the  Consti 
tution  :  that  Congress  had  no  power  to  enforce  the  verbal 
anti-slavery  article  of  the  Ordinance;  that  slaves  in  a  Terri 
tory  were  legal  property,  and  that  such  property  in  a  Terri 
tory  by  Congress  could  not  be  destroyed  without  just  compen 
sation  to  be  determined  before  some  tribunal  or  court  where 
the  affected  party  could  be  heard. 

But  just  now  the  most  significant  fact  is  that  within  the 
jurisdiction  of  the  Ordinance,  in  the  Old  Northwest  Terri 
tory,  before  the  formation  of  the  States,  the  people  enjoyed 
the  property  in  slaves  being  held  by  them  at  the  promulgation 
of  the  Ordinance ;  they  brought  slaves  into  the  Territory  from 
other  places  and  held  them  during  life;  and  the  children  of 
these  imported  slaves  were  born  into  slavery,  and  the  property 
therein  was  a  privilege  and  an  enjoyment  and  a  right  permitted 
to  the  people  by  the  local  laws  and  sanctioned  by  Congress. 
This  acquiescence  by  Congress  is  all  the  more  significant  when 
we  remember  that  "the  laws  enacted  by  the  territorial  legisla 
tures  are  alike  subject  to  modification  or  repeal  by  the  action 
of  Congress."2  This  has  been  recognized  so  often  as  funda 
mental  since  the  earliest  time  down  to  the  present  that  it 
will  not  be  disputed.  Till  disapproved  the  laws  of  the  terri 
torial  legislature  are  valid  and  operative.23  The  slave  property 
enjoyed  by  the  people  of  the  Northwest  Territory  was  legal 
property  held  under  valid  laws.  Now,  Congress  said  in  the 
establishment  of  the  Territory  of  Michigan  that  the  people 
should  enjoy  all  and  singular  the  rights,  privileges  and  advan 
tages  granted  and  secured  to  the  people  of  the  territory  of 
the  United  States  northwest  of  the  river  Ohio.  So  in  establish- 


22  Ter.    vs.   Lee,   2  Mont.    132. 

2;J  Miner's  Bank  of  Iowa,  (1851)  12  Howard,  i;  Brunswick  First  Nat.  Bk.  vs. 
Yankton  County,  (1879)  101  U.  S.  133;  U.  S.  vs1.  McMillan,  (1897)  165  U.  S.  510; 
Cope  vs.  Cope,  (1891);  137  U.  S.  686,  are  a  few  of  the  many  leading  cases. 


154  LEGAL  AND  HISTORICAL  STATUS 

ing  the  other  territorial  governments,  upon  which  acts  Judge 
Curtis  relied,  we  find  Congress  granting  to  them  no  more 
and  no  less  than  had  been  granted  and  secured  and  enjoyed 
by  the  people  under  the  preceding  acts.  There  is  not  an  in 
stance  where  Congress  enforced  against  the  people  of  any 
section  of  the  Old  Northwest  the  anti-slavery  article  of  the 
Ordinance;  but  as  we  have  seen  she  did  ratify  its  complete 
abrogation,  rendering  it  as  null  and  void  as  though  it  had  never 
been  penned.  Congress  declared  that  abrogation  of  the  anti- 
slavery  article  of  the  Ordinance  not  repugnant  to  its  princi 
ples.  Congress  has  thus  given  the  most  emphatic  practical 
construction  of  the  Constitution  to  the  effect  that  under  it 
the  Federal  Government  had  no  power  to  forbid  or  destroy 
property  rights  in  slaves. 

Hence,  upon  this  point  my  contention  is  that  when  we 
take  into  consideration  the  peculiar  wording  of  all  the  acts 
other  than  the  Missouri  Compromise,  the  actual  violations  of 
the  verbal  prohibition  of  the  Ordinance,  their  support  by  the 
local  courts,  the  acquiescence  of  Congress  and  its  final  explicit 
declaration  that  the  principles  of  the  Ordinance  had  not  been 
violated,  at  least  such  doubt  on  the  part  of  Congress  is  shown 
as  that  the  various  acts  upon  which  Judge  Curtis  and  others 
relied  are  not  entitled  to  weight  as  positive  practical  anti- 
slavery  laws  enacted  by  Congress.  This  conclusion  must  fol 
low,  it  is  clear  to  me,  whatever  may  have  been  the  actual  value 
of  the  Ordinance;  for  whether  Congress  had  the  power  to  en 
force  the  anti-slavery  article  of  that  compact  is  not  shown  by 
any  attempt  at  such  enforcement ;  and  certainly  one  important 
opportunity  at  enforcement  was  missed  when  Congress  failed 
to  take  notice  of  the  pro-slavery  laws  of  the  Indiana  Territory. 


IX. 
DUE  PROCESS  OF  LAW. 

"The  Territory,  being  a  part  of  the  United  States,  the 
government  and  the  citizen  enter  it  under  the  authority  of  the 
Constitution,  with  their  respective  rights  defined  and  marked 
out ;  and  the  Federal  Government  can  exercise  no  power  over 
his  person  or  property,  beyond  what  that  instrument  confers, 
nor  lawfully  deny  any  right  which  it  has  reserved. 

"Thus  the  rights  of  property  are  united  with  the  rights 
of  person,  and  are  placed  on  the  same  ground  by  the  fifth 
amendment  to  the  Constitution,  which  provides  that  no  person 
shall  be  deprived  of  life,  liberty,  or  property  without  due  pro 
cess  of  laiv.  And  an  act  of  Congress  which  deprives  a  citizen 
of  the  United  States  of  his  liberty  or  property,  merely  because 
he  came  himself  or  brought  his  property  into  a  particular  Ter 
ritory  of  the  United  States,  and  who  had  committed  no  offense 
against  the  laws,  could  hardly  be  dignified  with  the  name  of 
due  process  of  law."1 

In  answer  to  this  Mr.  Justice  Curtis  replied :  "Therefore, 
if  the  prohibition  on  all  persons,  citizens  as  well  as  others, 
to  bring  slaves  into  Territory,  and  a  declaration  that  if  brought 
they  shall  be  free,  deprives  citizens  of  their  property  without 
due  process  of  law,  what  shall  we  say  of  the  legislation  of 
many  of  the  slave-holding  States  which  have  enacted  the 
same  prohibition?" 

One  feels  painfully  surprised  that  Judge  Curtis  should 
have  used  this  argument.  Certainly  many  of  those  not  law 
yers  were  misled  thereby,  to  say  the  least  of  it.  (_It  was  an 
argument  that  made  splendid  ammunition  for  the  politicians 

1  19  Howard,  449-50,     The  Italics  are  mine. 

155 


156  LEGAL  AND  HISTORICAL  STATUS 

and  which  the  unscrupulous  among  them  used  to  iricite  popu 
lar  disloyalty.^ 

It  is  all  too  easy  to  lose  sight  of  the  fact  that  the  court 
had  in  this  case  under  consideration  the  field  and  limitations 
of  Federal  power.  What  was  true  of  a  State  government  was 
not  necessarily  true  of  the  United  States  Government.  Those 
who  framed  and  the  people  wrho  ratified  the  Constitution  were 
afraid  of  too  much  Federal  power,  and  so  they  hedged  the 
general  government  about  with  limitations  many  of  which  did 
not  maintain  in  the  States  in  respect  to  the  State  governments. 
In  fact,  as  set  out  in  the  preamble  of  the  joint  resolution, 
adopted  September  25,  1789,  proposing  the  first  ten  amend 
ments,  ''The  conventions  of  a  number  of  the  States  having 
at  the  time  of  their  adopting  the  Constitution  expressed  a  de 
sire,  in  order  to  prevent  misconstruction  or  abuse  of  its  powers, 
that  further  declaratory  and  restrictive  clauses  should  be 
added"  to  the  Constitution,  Congress  proposed  the  amend 
ments  "restrictive"  as  to  Federal  power  only.  Of  the  amend 
ments,  "declaratory  and  restrictive,"  the  fifth,  providing  for 
due  process  of  law,  was  one.  This  amendment  with  others  was 
shortly  adopted  after  its  proposal.  That  it  is  not  a  limitation 
on  the  powers  of  the  State,  is  universally  conceded.  In  1833 
Chief  Justice  Marshall  said  that  the  Constitution  was  not  es 
tablished  "for  the  government  of  the  individual  States."2 
That  this  is  true,  and  that  the  due  process  of  law 
that  is  meant  in  the  fifth  amendment  is  a  limitation 
on  the  powers  of  Congress,  and  not  on  the  powers  of 
the  States,  are  most  firmly  and  unquestionably  established 
in  this  country.3  This  fundamental  truth  was  clearly  known 
to  both  Curtis  and  McLean,  and  each  alone  as  well  as  in  con 
nection  with  the  Supreme  Court,  had  repeatedly  acted  upon 
and  applied  it.4 


2  Barren  vs.   Baltimore,   7    Peters, '247. 

z  Ohio  vs.  Dollison,  (1904)  194  U.  S.  447;  McFaddin  vs.  Evans.  Snider  Buel 
Co.  (1902)  185  U.  S.  509;  Howard  vs.  Kentucky,  200  U.  S.  164;  10  Amer.  &  Eng. 
Ency.  of  Law,  2nd  ed.,  288,  and  the  unbroken  line  of  decisions  there  cited. 

4  Fox  vs.  Ohio,  (1847)  5  Howard,  410;  Livingston  vs.  Moore,  (1833)  7  Peters', 
551;  U.  S.  vs.  Keen,  (1839)  i  McLean  (U.  S.),  429;  and  the  other  decisions  cited 
in  9  Federal  Stats.  Anno.,  256. 


OF    THE    DRED    SCOTT    DECISION  157 

Since  the  fourteenth  amendment — not  even  pictured  in 
the  wildest  dreams  of  the  most  vindictive  at  the  time  of  the 
Dred  Scott  decision — there  is  in  the  Constitution  a  provision 
with  reference  to  the  States  similar  to  that  of  the  fifth  in  refer 
ence  to  the  United  States ;  but,  since  the  fourteenth  amendment 
has  no  bearing  on  the  case  before  us,  its  consideration  has 
no  place  in  this  examination.  We  refer  to  it  merely  to  em 
phasize  the  fact  that  it  has  been  made  a  part  of  the  Constitu 
tion  long  since  the  decision  of  this  case.5  Hence,  Mr.  Justice 
Curtis'  argument,  however  he  may  have  meant  it,  being  abso 
lutely  without  foundation  in  its  application  to  the  Federal 
Government,  for  the  powers  of  which  alone  the  court  was  en 
quiring,  served  no  purpose  other  than  to  mislead  those  not 
having  a  clear  conception  of  the  nature  of  American  gov 
ernment.  There  was  entire  lack  of  the  analogy  suggested  by 
Curtis.  His  argument  merely  served  the  purpose  of  strength 
ening  the  groundless  impression  that  the  opinion  of  the  court 
in  practical  results  would  respread  slavery.  Undoubtedly, 
upon  this  point  a  State  could  do  many  things  Congress  could 
not;  for  the  State  legislated  entirely  free  from  the  due  process 
restraint  of  the  Constitution. 

The  court's  application  of  the  due  process  restriction  and 
declaration  to  Congress,  the  legislative  branch  of  the  Govern 
ment,  it  is  settled,  was  entirely  proper.  That  Congress  cannot 
make  any  process  due  process  of  law,  has  been  long  the  settled 
law  of  this  country,  and  this  principle  had  been  reaffirmed  by 
the  Supreme  Court  in  i855,6  at  the  very  time  the  Scott  case 
was  being  heard;  and  the  principle  is  not  questioned.7  A 
statute  may  be  anything  other  than  due  process  of  law,  as  Dan 
iel  Webster  so  forcibly  argued  in  1819  in  the  famous  Dart 
mouth  College  Case.8  Said  he:  "The  meaning  is,  that  every 


5  A  construction  of  the  fourteenth  amendment  may  be  seen  in  Hurtado  cvs.  Call. 
no  U.  S.  328;  Maxwell  vs.  Dow,  176  U.  S.  581;  French  vs.  Barber,  (1901)  181 
U  S:  324;  Hibben  vs:  Smith,  191  U.  S.  325;  John  S.  Wise,  Citizenship;  and 
McGehee,  Due  Process  of  Law,  35  et  seq. 


0  Maury  vs'.   Hoboken  Land   Co.,   18  Howard,  -277. 

Chicago,    etc.,    vs 
.   409- 

4   Wheaton,   581. 


7  Chicago,    etc.,    vs.    Chicago,    166    U.    S.    226,    235,    240;    Harvey    vs.    Elliott;    167 
U.   S.   409. 


158  LEGAL  AND  HISTORICAL  STATUS 

citizen  shall  hold  his  life,  liberty,  property  and  immunities  un 
der  the  protection  of  the  general  rules  which  govern  society. 
Everything  which  may  pass  under  the  form  of  an  enactment, 
is  not,  therefore,  to  he  considered  the  law  of  the  land.  If  this 
were  so,"  he  illustrates,  "acts  reversing  judgments,  and  acts 
directly  transferring  one  man's  property  to  another,"  and  all 
such,  "in  all  possible  forms,  would  be  the  law  of  the  land. 
Such  a  strange  construction  would  render  constitutional  provis 
ions  of  the  highest  importance  completely  inoperative  and 
void.  It  would  tend  directly  to  establish  the  union  of  all 
powers  in  the  legislature.  There  would  be  no  general  perma 
nent  law  for  courts  to  administer,  or  for  men  to  live  under."9 
In  re  Kennedy  the  Supreme  Court  of  the  United  States 
held  that  "due  process  of  law  in  the  fifth  amendment  referred 
to  that  law  of  the  land  which  derives  its  authority  from  the 
legislative  powers  conferred  on  Congress  by  the  Constitution 
of  the  United  States,  exercised  within  the  limits  therein  pre 
scribed,  and  interpreted  according  to  the  principles  of  the  com 
mon  law."10  What  were  the  applicable  principles  of  the 
common  law  by  which  we  are  to  be  thus  guided  in  finding  due 
process?  McGehee  gives  a  definition,  following  the  settled 
construction,  embodying  two  of  the  most  important  of  these 
principles.  He  says  "due  process  implies  the  administration 
of  equal  laws  according  to  established  rules,  not  violative  of  the 
fundamental  principles  of  private  right,  by  a  competent  tribunal 
having  jurisdiction  of  the  case  and  proceeding  upon  notice  and 
hearing."11  There  must  be  a  competent  tribunal  having  jur 
isdiction  of  the  case,  and  proceeding  upon  notice  and  hear 
ing.12  The  Missouri  Compromise  provided  no  tribunal,  no 
court  of  justice,  for  depriving  the  owner  of  his  property;  he 
was  given  no  opportunity  to  be  heard.  "Law  in  its  regular 


8  "Due  process  of  law"  and  "law  of  the  land,"  are  in  legal  phraseology  synono- 
mous  tefms.  McGehee,  Due  Process  of  Law.  See  Webster's  argument  before  the 
Supreme  Court  of  the  United  States  in  Kennedy's  Life  of  Wirt,  n.  82,  and  Webster's 
Works.  Farrar,  Report  of  Dart.  College  Case;  J.  M.  Dillon,  Marshall's  Decisions, 
299  et  seq. 

10  136  U.   S.  436. 

11  Due   Process'  of  Law,    (1906)    49;    Wise,    Citizenship,    250. 

12  Gilpin  vs.   Page,   18  Wall.   350;   Harvey  vs.   Elliott,   167   U.    S.  409. 


OF    THE    DRED    SCOTT    DECISION  159 

administration  through  courts  of  justice  is  due  process  of 
law,"  said  the  Supreme  Court  in  Calclwell  vs.  Texas.13  Cer 
tainly  it  is  settled  in  this  country  that  there  must  be  a  tri 
bunal  of  some  kind  where  a  party  can  be  heard  before  his 
property  be  taken.14  Even  laws  providing  for  and  requiring 
taxes,  it  is  settled,  must  afford  a  tribunal  and  an  opportunity 
where  the  party  liable  can  be  heard;  or  otherwise  that  small 
part  of  one's  property  necessary  for  the  support  of  government 
cannot  be  taken;  because  if  taken  without  opportunity  to  each 
individual  to  be  heard,  it  would  be  lacking  in  due  process  of 
law.15 

The  Missouri  Compromise  was  not  a  general  rule  of 
society;  it  affected  and  injured  a  class  only.  Said  the  Supreme 
Court  in  Ex  parte  Virginia,  neither  the  government,  nor  the 
officers  or  agents  by  whom  its  powers  are  exerted,  "shall 
deny  to  any  persons  within  its  jurisdiction  the  equal  pro 
tection  of  the  laws."16  The  Missouri  Compromise  rendered 
unequal  the  protection  of  the  Federal  Government.  All  the 
property  rights  created  by  the  laws  of  Massachusetts,  in  prop 
erty  carried  to  the  Territory  affected  by  the  compromise  law, 
received  full  protection.  Some  of  the  property  rights  created 
by  Virginia,  just  as  much  property  by  the  Virginia  law  as  the 
property  of  Massachusetts  was  such  by  her  law,  in  property 
carried  to  the  same  Territory,  were  extinguished,  not  only 
without  a  hearing  but  without  an  opportunity  to  be  heard,  and 
utterly  destroyed  without  compensation.  The  Virginian  did 
not  have  the  equal  protection  with  his  Northern  brother. 
To  the  Southerner  there  was  lacking  the  enjoyment  of  "that 
fundamental  maxim  of  distributive  justice,  suum  cuique  tri- 
bitere/'17  There  is  no  due  process  unless  the  laws  "operate 
on  all  alike."18 


«  137  U.  S.  692. 

14  McMillan    vs.    Anderson,    95    U.    S.    41;    Clearing   House    vs.    Coyne,    194    U.    S. 
508,  Hayer  vs:  Reclamation,  etc.,   in   U.   S.    701. 

13  Longyear  vs.   Toolan,    (1908)    209  U.    S.   414;    Security  Trust   Co.   vs.   Lexington, 
(1906)    203    U.    S.   323. 

10  100  U.    S.   339. 

"Hurtado   vs.    Calif.,    no    U.    S.    516. 

15  Giozza  vs.  Tiernan,  148  U.   S.   662. 


160  LEGAL  AND  HISTORICAL  STATUS 

No  one  can  read  the  proceedings  of  the  constitutional  con 
vention  and  in  the  various  State  conventions  which  ratified 
the  Constitution,  without  being  impressed  with  the  fact  that 
the  framers  of  that  instrument  certainly  had  assured  the  slave- 
holding  States  that  the  Federal  Government  should  be  given 
no  power  to  jeopardize  slaves  recognized  as  property  by  local 
laws ;  and  that  the  framers  of  the  Constitution  recognized 
the  property  nature  of  slaves  as  differing  in  no  respect  what 
ever  from  other  property.  When  the  constitutional  conven 
tion  was  selecting  a  committee  to  draft  the  new  form  of  gov 
ernment,  General  Pickney  of  South  Carolina  "reminded  the 
convention  that  if  the  committee  should  fail  to  insert  some 
security  to  the  Southern  States  against  an  emancipation  of 
slaves,"  he  should  be  bound  by  duty  to  his  State  to  vote 
against  their  report.19  Rutledge  of  the  same  State,  when  the 
convention  had  the  articles  relating  to  slave  property  under 
consideration,  said,  that  "he  never  would  agree  to  give  a  power 
by  which  the  articles  relating  to  slaves  might  be  altered  by 
the  States  not  interested  in  that  property"2®  When  the  con 
vention  had  under  advisement  some  just  method  of  raising 
revenue  for  the  general  government,  Samuel  Chase  "observed 
that  negroes  are  property,  and  as  such  cannot  be  distinguished 
from  lands  or  personalties  held  in  those  States  where  there 
are  few  slaves.''21  As  the  clause  of  the  Constitution  author 
izing  a  duty  on  imports  first  stood,  slave  property  was  not 
included.  Wrilson  declared  that  as  it  thus  stood  it  was  "in 
fact  a  bounty  on  that  article."22  Notice,  the  said  article.  King 
declared  that  "whilst  every  other  import  was  subject  to  the" 
proposed  tariff,  the  omission  of  slave  property  was  "an  in 
equality  that  could  not  fail  to  strike  the  commercial  sagacity 
of  the  Northern  and  Middle  States."23  Sherman  of  Connecti- 


18  2   Madison's   Debates,    1187. 

20  Ib.    1536. 

21  Ib.  28. 

22  Ib.    1394. 

23  Ib'.    1395- 


OF    THE    DRED    SCOTT    DECISION  l6l 

cut  opposed  the  tax  on  slave-importations  because  it  ''implied 
that  they  were  property."24 

In  fact  just  as  the  Northern  States  were  uneasy  for  their 
manufacturers  and  as  their  interests  were  watched  at  every 
step  during  the  constitutional  convention,25  so  the  States  where 
slave  labor  was  legal  property,  guarded  its  property  nature  at 
every  point, — and  with  the  knowledge  and  help  of  all  the 
States. 

That  this  is  true  and  that  had  it  been  otherwise  the 
slave  labor  Stales  would  not  have  ratified  the  Constitution,  is 
incontrovertibly  shown  by  the  debates  in  the  various  ratifying 
conventions,  North  and  South.  In  the  debates  of  the  Virginia 
convention  which  ratified  the  Constitution  and  while  it  was 
being  discussed,  Patrick  Henry  said :  "Slavery  is  detested. 
\Ve  feel  its  fatal  effects — we  deplore  it  with  all  the  pity  of 
humanity."  Then  he  expressed  the  fear  that  Congress  by  the 
Constitution  had  been  given  power  over  the  subject  of  slave 
property,  concluding:  "This  is  a  local  matter,  and  I  can  see 
no  propriety  in  submitting  it  to  Congress."  But  Governor 
Randolph,  who  had  been  a  delegate  to  the  convention  that 
drew  the  Constitution,  at  once  replied  to  Henry,  declaring  that 
the  delegates  in  the  convention  believed  and  meant  that  the 
terms  of  the  Constitution  should  and  had  amply  secured  prop 
erty  in  slaves  against  any  control,  regulation,  or  interference 
by  the  Federal  Government.20  When  the  people  of  North 
Carolina  met  in  convention  to  consider  the  proposed  Constitu 
tion,  there  was  considerable  debate  over  the  three-fifths  clause. 
Oavie,  who  had  represented  his  people  in  the  constitutional 
convention,  said :  "The  Eastern  States  had  great  jealousies 
on  this  subject  [of  taxation  and  representation].  They  in 
sisted  that  their  cows  and  horses  were  equally  entitled  to  repre 
sentation  ;  that  the  one  was  property  as  well  as  the  other." 
That  is,  the  slaves  comprehended  in  the  "three-fifths  of  all 
other  persons"  were  property  in  the  legal  sense  in  which  cows 


24  lb.   1396. 

25  Ib.   1446. 

20  3   Elliot's'  Debates,   590,   599. 


1 62  LEGAL  AND  HISTORICAL  STATUS 

and  horses  are  property.  He  then  explained  that  the  Northern 
States  finally  compromised,  omitted  from  the  basis  of  taxation 
and  representation  their  cows  and  horses,  because  of  the  small- 
ness  of  the  population  of  the  Southern  States.27  If  the  slave 
ever  were  "reduced  to  the  level  of  the  horse,''  it  was  by  meas 
ures  incorporated  into  the  Constitution  by  the  cooperation  of 
the  Northern  States, — provisions  the  Supreme  Court  must 
enforce  and  which  it  could  not  change. 

Discussing  this  same  provision  before  the  New  York 
ratifying  convention,  Hamilton,  who  had  been  very  active  in 
the  constitutional  convention  and  who  was  ultra-Federal  in 
construing  the  powers  of  the  government,  explained:  "It  is 
the  unfortunate  situation  of  the  Southern  States  to  have  a  great 
part  of  their  population  as  well  as  property  in  blacks.  The 
regulation  complained  of  was  one  result  of  the  spirit  of  ac 
commodation  which  governed  the  convention ;  and  without 
this  indulgence  no  union  could  possibly  have  been  formed. 
.  .  .  But  the  justice  of  this  plan  will  appear  in  another  view. 
The  best  writers  on  government  have  held  that  representation 
should  be  compounded  of  persons  and  property."2 

There  can,  therefore,  in  the  light  of  the  history  of  the 
Constitution,  get  it  from  what  source  we  may,  be  no  suc 
cessful  question  of  the  fact  that  purposely  the  legal  nature 
of  slave  property  had  the  same  recognition  in  the  Constitu 
tion  as  did  the  legal  nature  of  other  property.  Were  further 
evidence  needed  to  strengthen  this,  it  would  be  found  in  the 
fact  that  before  the  Constitution  when  the  American  authori 
ties  came  to  arrange  terms  of  peace  with  England  slave  proper 
ty  was  put  upon  the  same  ground  as  other  property;  and  that 
after  the  Constitution,  Congress,  as  elsewhere  said,  followed 
up  this  by  requiring  England  to  pay  a  property  value  long 
after  this  property  had  been  beyond  the  jurisdiction  of  Ameri 
can  authority. 

There  being,  then,  no  distinction  as  to  the  property  na 
ture  of  slaves,  that  property  being  affirmed  in  and  guaranteed 


27  4  Elliot,  31. 

28  2  Elliot,  237. 


OF    THE    DRED    SCOTT    DECISION  163 

by  the  terms  of  the  Constitution  at  the  time  of  its  adoption, 
it  is  the  more  certain  that  after  the  incorporation  of  the 
fifth  amendment,  made  after  adoption  to  quiet  the  fears  of 
those  who  doubted  the  original  provisions,  made  the  property 
rights  existing  in  slaves  as  secure  from  Federal  destruction  as 
legal  language  could  express, — for  that  amendment  was  a  re 
striction  upon  the  Federal  Government  exclusively. 

Similar  principles  to  those  which  show  the  unfairness 
of  Mr.  Justic  Curtis'  argument  with  reference  to  due  process 
in  its  application  to  the  States,  also  expose  the  error  of  his 
argument  wherein  he  insists :  "A  citizen  of  the  United  States 
owns  slaves  in  Cuba,  and  brings  them  to  the  United  States, 
where  they  are  set  free  by  the  legislation  of  Congress.  Does 
this  legislation  deprive  him  of  his  property  without  due  process 
of  law?  If  so,  what  becomes  of  the  law  prohibiting  the  slave 
trade?  If  not,  how  can  a  similar  regulation  respecting  a  Ter 
ritory  violate  the  fifth  amendment  of  the  Constitution?"29 

Any  intelligent  person  will  readily  agree  that  what  is 
property  and  what  may  become  property  are  questions  that 
any  people  may  regulate  in  establishing  the  government  under 
which  they  are  to  live.  It  is  a  most  fundamental  truth  that 
that  is  property  between  the  citizen  or  subject  and  his  gov 
ernment  which  those  who  exercise  the  sovereignty  in  establish 
ing  the  government  have  said  shall  be  property.  It  was  pro 
vided  in  the  Constitution  that  property  rights  might  attach  to 
negro  slaves  in  two  ways :  to  "such  persons  as  any  of  the 
States  now  existing  shall  think  proper  to  admit"30  being  ne 
groes,  until  1808  by  importation;  and  by  birth  of  a  slave 
mother  in  any  State  the  laws  of  which  legalized  slave  proper 
ty.  During  the  time  slaves  might  become  property  by  im 
portation,  it  was  regarded  as  fair  to  the  Federal  Govern 
ment  that  it  be  permitted  to  tax  or  impose  a  tariff  upon  that 
property  as  a  reward  for  the  right  of  ownership.  Too,  it  was 
regarded  as  fair  to  all  .States  so  long  as  they  wished  to  continue 
to  recognize  this  class  of  property,  that  it  be  protected  by  the 

-y  19   Howard,   627. 
30  Art.    i,   Sec.   9. 


164  LEGAL  AND  HISTORICAL  STATUS 

Federal  Government  from  escape,  and  to  this  end  the  fugitive 
slave  provision  was  written  in  the  Constitution.31  After  1808 
Congress  was  given  the  power  to  limit  the  States  to  one  source 
of  slave  property:  birth  within  the  State  and  under  the  jur 
isdiction  of  its  slave  property  lazvs.  Thus  the  Federal  Gov 
ernment  was  given  power  not  to  destroy  slave  property  after 
the  property  right  had  vested,  but  to  limit  the  source  of  its 
becoming  property.  And  Congress,  we  remember,  has  no 
power  not  given  it  by  the  Constitution ;  and  that  instrument  is 
always  interpreted  as  understood  when  adopted. 

The  fifth  amendment  was  for  the  protection  of  that  as 
property  which  the  Constitution  had  left  to  the  States  or  any 
one  of  them  to  recognize  as  property.  It  could  not  protect  that 
which  the  very  instrument  of  which  it  was  a  part  had  provided 
should  not  become  legal.  Slaves  in  Cuba  could  not  become 
property  in  any  one  of  the  United  States  or  anywhere  within 
the  jurisdiction  of  the  Federal  Government,  because  of  the 
specific  limitation  of  the  Constitution  upon  the  source  of  that 
property  right,  and  also  because  in  the  several  States  there 
were  regulations  which  confined  the  attaching  of  the  prop 
erty  right  to  such  negroes  as  were  born  of  slave  mothers 
within  the  jurisdiction  of  the  State  law.  Having  attached 
by  the  method  prescribed  by  the  Constitution,  the  Federal 
Government  was  given  no  power  to  destroy  and  was  required 
to  prevent  any  State  from  impairing  the  right  as  to  a  fugitive. 

Chief  Justice  Taney  and  the  majority  of  the  court  legally 
and  historically  are  sustained.  The  Constitution  was  applica 
ble  to  the  Territory  for  which  the  Missouri  Compromise  was 
enacted;  Congress 'could  pass  no  law  prohibiting  slavery  in 
that  Territory  unless  authorized  by  the  Constitution ;  no  such 
authority  was  given  Congress  by  the  Constitution,  because  by 
specific  provision  the  legality  of  slave  property  existing  by  vir 
tue  of  State  law  was  recognized;  and,  outside  of  the  import 
question,  no  power  was  conferred  except  the  duty  of  guarding 
and  protecting  the  right  created  by  the  State.  The  Missouri 

31  Art.   IV,   Sec.   2. 


OF    THE    DRED    SCOTT    DECISION  165 

Compromise  prohibition  was  not  political ;  Congress  is  not  the 
final  judge  of  what  laws  defining  property  rights  are  needful 
for  a  Territory.  Had  it  even  had  power  over  slave  property 
in  a  Territory  Congress  could  not  have  destroyed  those  prop 
erty  rights  without  just  compensation,  and  the  measure  of  such 
compensation  being  unquestionably  judicial,  such  questions 
must  have  been  left  to  some  tribunal  where  the  party  affected 
could  have  been  heard. 


X. 


SLAVE   PROPERTY  UNDER  THE   CONSTITUTION 
AND   OUTSIDE  OF  A  STATE. 

,  That  Chief  Justice  Taney  was  correct  in  applying"  to 
Congress  when  legislating  for  a  Territory  the  restrictions, 
limitations,  and  powers  as  defined  by  the  Constitution,  is  now 
the  settled  doctrine  in  America.  The  recognition  that  this 
doctrine  now  receives  is  most  gratifying.  The  correctness, 
weight,  and  judicial  force  of  the  court's  judgment  as  to  the 
power  of  Congress  over  property  in  general  in  a  Territory, 
is  no  longer  seriously  disputed;  but  some  yet  insist  that  as 
to  slave  property  the  principles  were  not  applicable  because  it 
is  said  that  that  class  of  property  was  an  exception.  Of  course 
no  one  pretends  to  point  to  any  specific  words  or  provisions 
of  the  Constitution  in  support  of  this  claim.  There  are  none. 
They  rest  their  argument,  again  following  Benton,  upon  the 
contention  that  property  in  a  slave  could  exist  only  while  the 
slave  remained  within  the  geographical  limits  of  the  State 
the  laws  of  which  legalized  this  property,  and  that  having 
passed  beyond  the  State  it  ceased  to  be  property.  It  is  per 
haps  no  presumption  in  me  to  say  that  I  cannot  see  how  any 
mind  with  legal  training  can  hold  this  view  after  following 
the  powerful  logic  of  Taney,  especially  after  admitting,  as  is 
now  done,  that  he  was  correct  unless  the  Constitution  itself 
recognized  slave  property  as  the  single  "and  wholly  exception 
al  class."  As  we  have  just  seen,  the  history  of  the  formation 
and  of  the  ratification  of  the  Constitution  proves  that  that  in 
strument  knows  no  distinction.  But  the  fact  that  an  eminent 
lawyer,  without  attempting  to  cite  any  authority  for  his  claim, 
recently  reasserted  the  theory  that  slave  property  was  a  wholly 

1 66 


OF    THE    DRED    SCOTT    DECISION  167 

exceptional  class,  makes  it  proper  to  give  a  more  detailed  study 
of  the  meaning  of  the  word  property  as  used  in  the  Constitution 
in  its  applicability  to  slave  property  outside  of  a  State  the  laws 
of  which  recognized  it  as  property  . 

In  1901  Mr.  Justice  Brown,  in  "announcing  the  conclu 
sion  and  judgment"  of  the  Supreme  Court  of  the  United  States 
in  Downs  vs.  Bidwell,1  said:  "The  difficulty  with  the  Dred 
Scott  Case  was  that  the  court  refused  to  make  a  distinction 
between  property  in  general,  and  a  wholly  exceptional  class 
of  property.  Air.  Benton  tersely  stated  the  distinction  by  say 
ing  that  the  Virginian  might  carry  his  slave  into  the  Territor 
ies,  but  he  could  not  carry  with  him  the  Virginia  law  which 
made  him  a  slave."-  That  is,  a  slave  was  property  by  the  law 
of  the  State  merely  and  only  while  within  the  geographical 
limits  of  the  States  by  the  laws  of  which  the  slavery  was  legal. 

It  is  interesting  to  observe  that  Air.  Justice  Brown  admits 
that  if  we  grant  that  the  Constitution  knew  no  difference  be 
tween  slave  property  and  property  in  general,  as  to  its  property 
nature,  then  the  dic-ision  that  the  Missouri  Compromise  was 
unconstitutional  furnishes  one  of  the  strongest  authoritative 
precedents  for  measuring*the  power  of  Congress  in  legislating 
for  a  Territory;  in  fact  he  says  it  settles  the  matter  if  we 
are  to  grant  the  court's  argument  as  to  the  nature  of  slave 
property. 

Under  the  laws  of  States  where  slave  property  was 
recognized,  the  property  right  to  the  labor  of  the  slave  was 
just  as  absolute,  as  no  one  has  ever  questioned,  as  was  the 
right  attaching  to  any  legal  property.  Moving  outside  of  the 
geographical  limits  of  the  State,  and  into  a  Territory,  the 
owner  of  any  property  did  not  carry  with  him  the  law  of  the 
State.  His  gun,  for  instance,  in  the  Territory  was  property 
because  in  all  the  States  at  the  adoption  of  the  Constitution 
the  word  property  comprehended  guns,  and  so  in  the  Consti 
tution  the  wTord  property  comprehends  guns  and,  by  its  terms, 


182  U.  S.  224. 
Ib.  275. 


1 68  LEGAL  AND  HISTORICAL  STATUS 

it  preserves  and  protects  in  the  emigrant's  gun  what  the  State 
law  created.  Thus,  by  the  terms  of  the  Federal  Constitution 
as  to  all  similar  property,  it  is  admitted  by  all,  the  right  while 
the  object  is  in  a  Territory  continues  to  be  a  property  right. 
Now,  that  the  word  property  was  practically  universally  un 
derstood  to  comprehend  slave  property  as  yet  property  after 
the  object  had  been  carried  beyond  the  geographical  limits 
of  the  State  law  creating  or  recognizing  it,  even  if  the  due  pro 
cess  provision  had  not  been  added  to  the  Constitution,  there 
is  the  most  abundant  proof.  There  is  not  only  abundant  evi 
dence  of  this  fact,  but  there  is  nothing  of  consequence  in  the 
history  of  this  country  to  show  that  the  word  property  as 
used  in  the  Constitution,  for  instance  in  the  fifth  amendment, 
was  meant  to  have  any  other  meaning  than  that  so  generally 
ascribed  to  it;  that  is,  that  it  comprehended  any  object  having 
once  been  property  by  virtue  of  a  State  law7,  unless  the  owner 
voluntarily  surrendered  his  property  right.  For  instance  a  wild 
lion  in  the  mountains  of  Africa  was  not  private  property. 
Captured  and  brought  to  Massachusetts  the  State  law  at  once 
invested  the  owner  with  a  property  right.  Carried  into  terri 
tory  of  the  Louisiana  Purchase  in  1819,  for  instance,  the 
Constitution  protected  and  preserved  the  property  right,  al 
though  admittedly  the  State  law  was  not  carried  to  the  Ter 
ritory;  and,  unless  turned  into  the  jungles  by  the  owner,  the 
property  right  in  that  lion  continued  solely  and  alone  because 
protected  by  the  Constitution  because  the  word  property  there 
in  comprehended  such  objects.  Similarly  and  for  similar  rea 
sons  of  the  private  domestic  property  rights  existing  in  a  negro 
slave. 

Now  we  see,  again,  the  great  importance  of  the  emphasis 
1  given  in  a  previous  chapter  to  the  truth  that  the  meaning 
a  word  or  provision  of  the  Constitution  was  understood  to 
have  when  incorporated  into  that  instrument,  is  retained 
and  enforced  until  changed  by  amendment.  Hence  the  value 
of  early  instances  in  which  the  property  rights  existing  in 
slaves  were  given  authoritative  recognition  after  the  slave 


OF    THE     DRED    SCOTT    DECISION  169 

had  been  carried  beyond  the  positive  law  creating  and  recogniz 
ing  the  right  as  property.  Of  such,  and  of  judicial  recogni 
tion  of  such  rights,  I  can  give  only  representative  instances, 
none  of  which  are  given  in  the  opinion  in  the  Dred  Scott  Case; 
but  I  believe  them  ample  to  sustain  the  court  in  its  construc 
tion  of  the  word  property  as  used  in  the  Constitution;  and  in 
it  application  to  slave  property  carried  to  a  Territory;  and 
more  than  ample  to  show  the  error  of  McLean,  Benton,  and 
later  Mr.  Justice  Brown. 

Many  instances  might  be  cited  to  show  that  before  the 
American  Revolution,  it  was  universally  understood  that  the 
property  in  a  slave  remained  property  no  matter  where  the 
negro  should  go  or  be  carried.  I  can  here  give  only  two 
such  illustrations,  representative  and  of  peculiar  historic 
interest. 

July  1 6,  1/50,  M.  de  la  Joquiere,  the  French  governor 
of  New  France,  writing  from  Quebec  to  M.  de  Rouelle  concern 
ing  an  exchange  of  prisoners  between  the  English  authorities 
in  America  and  himself  and  his  military  staff,  said :  "In  regard 
to  the  negro,  in  the  possession  of  Sieur  de  la  Corne  St.  Luc, 
I  thought  proper  not  to  send  him  back,  every  negro  being  a 
slave  wherever  he  be,  as  I  have  observed  in  the  procesverbal. 
Besides,  herein  I  only  do  what  the  English  themselves  did  in 
1747.  Ensign  de  Malbronne,  on  board  Le  Scrieu.r,  had  a  ne 
gro  servant  who  was  at  first  taken  from  him ;  I  took  pains  to 
reclaim  him,  the  English  refused  to  surrender  him  on  the  same 
ground,  that  every  negro  is  a  slave,  wherever  he  happens  to 
be." 

Xor  was  this  an  e.r  partc  proceeding;  it  had  the  official 
sanction  of  the  British  American  authorities.  In  the  minutes 
concerning  the  exchange  of  prisoners  between  the  late  bellig 
erents,  a  war  between  England  and  France  just  having  been 
terminated,  we  see  that  the  court  was  composed  of  the  govern 
or  of  Xew  France  and  his  civil  and  military  officers  of  the 
proper  rank,  and  Sloddert,  lieutenant  of  the  Xew  York  infan 
try,  Antony  van  Scheick,  captain  of  Xew  York  militia,  and 


I7O  LEGAL  AND  HISTORICAL  STATUS 

others.  Their  written  minutes  say :  "And  in  regard  to  Sam 
uel  Fremont,  a  negro,  in  the  service  of  Sieur  de  la  Corne  St. 
Luc,  Lieutenant  of  Infantry,  we  have  ordered  that  he  remain 
in  the  Colony,  all  negroes  being  slaves  in  whatsoever  country 
they  reside."  This  agreement  was  signed  by  both  the  English 
and  American  officials.3 

July  1 8,  1/64,  ''Articles  of  Peace,  Friendship  and  Alli 
ance"  were  concluded  between  Sir  William  Johnson,  "His 
Majesty's  Sole  Agent  and  Superintendent  of  Indian  Affairs, 
for  the  Northern  District  of  North  America,"  on  behalf  of  his 
Britanic  majesty,  and  "the  Huron  Indians  of  Detroit."  In 
article  second  the  Hurons  agreed :  "That  any  English  who  may 
be  prisoners,  or  deserters,  and  any  Negroes,  Panis,  or  other 
slaves  among  the  Hurons,  who  are  British  property,  shall  be 
delivered  up,  within  one  month,  to  the  Commandant  of  the 
Detroit,  and  that  the  Hurons  use  all  possible  endeavors  to  get 
those  who  are  in  the  hands  of  the  neighboring  Nations;  engag 
ing  never  to  entertain  any  deserters,  fugitives,  or  slaves ;  but 
should  any  such  fly  to  them  for  protection,  they  are  to  deliver 
them  up  to  the  next  commanding  officer." 

In  article  five  it  was  stipulated  on  the  part  of  Great 
Britain,  "that  said  Indians  shall  enjoy  all  their  original  rights 
and  privileges."  This  solemn  and  mutual  compact  was  regular 
ly  signed  and  sealed  by  all  the  high  contracting  powers.  After 
each  chief's  name  was  his  tribal  seal,  "the  whole  being  first 
duly  explained  to  them."4 

It  will  be  observed  that  this  treaty,  per  se,  acknowledged 
the  independence  and  sovereignty  of  these  Nations;  and  it 
pledged  the  faith  of  the  English  Government  to  maintain  them 
inviolate.  By  treating  with  these  Nations  she  acknowledged 
them  to  be  entirely  beyond  the  jurisdiction  of  her  laws.  Prop 
erty  in  slaves  existed  by  virtue  of  her  local  provincial  American 
laws ;  and  in  this  treaty  she  claimed  that  the  status  of  the  slave 


3  Trans,    in   Documents   relating  to   Colonial    N.    Y.,  gathered   abroad  by   their  com 
piler,  vol.   x.,   210. 

*  The   seals    of   thes'e    four    Huron   tribes   are    gotesque,    yet   they    indicate    the    rude 
origin   of  the  nation    and  its  solemn   emblem   of  power. 


OF    THE    DRED    SCOTT    DECISION  I/I 

as  imposed  by  virtue  of  those  laws  followed  the  slave  and  ad 
hered  to  him  after  he  passed  beyond  their  jurisdiction  and 
power;  in  other  words,  "once  a  slave  always  a  slave." 

As  I  have  pointed  out  in  another  monograph,5  the  legal 
ity  of  slave  property,  even  when  carried  beyond  the  territorial 
limits  of  the  United  States,  and  of  course  thus  outside  of  the 
municipal  law  which  created  it,  was  fully  recognized  under 
the  Confederation.  Both  the  legislative  and  the  executive 
treated  such  property  as  an  article  of  merchandise  differing  as 
to  its  property  nature  from  no  other  valuable  article.  "Negroes 
and  other  property  of  American  inhabitants"  were  put  upon 
the  same  footing  in  the  treaty  of  1783  with  Great  Britain.6 
So  in  the  treaty  of  Ghent  in  1814"  we  claimed  confiscated 
slaves  and  those  that  had  gone  to  the  enemy,  as  the  property 
of  American  citizens ;  and  finally,  after  arbitration,  these 
slaves,  long  after  they  were  beyond  the  limits  of  the  slave 
States  and  beyond  the  geographical  limits  of  the  United  States, 
were  adjudged  to  be  valuable  legal  property,  and  England, 
in  1827,  paid  one  million  two  hundred  and  sixty  dollars  for 
this  slave  property.8  Other  conspicuous  instances  where 
in  the  executive  and  political  departments  of  this  government 
enforced  the  rights  of  slave  property  beyond  the  municipal  reg 
ulations  of  *a  slave  State,  are  the  incidents  of  the  Comet,  1833, 
and  the  Ecomium  in  1834.  These  were  slave  ships  engaged 
in  carrying  slaves  from  the  District  of  Columbia  to  a  Southern 
port,  and  that  were  driven  beyond  the  jurisdiction  of  the 
United  States  by  stress  of  weather,  and  whose  slaves  were 
landed  upon  British  territory.  The  local  British  authorities 
insisted  on  declaring  the  slaves  free  and  on  maintaining  them 
in  that  freedom.  But  Congress  by  resolution  practically  un 
opposed  declared  that  the  rights  of  property  still  adhered  to 
these  negroes,  and  the  executive  compelled  the  British  Govern- 


3  Northern   Rebellion   and    Southern    Secession,   p.    4. 

11  American    State    Papers:    Foreign    Relations,    vol.     i,    p.     190;    John    Q.    Adams, 
Works.    (Boston,    1850)    v.    3,    336    v.    9.    632. 

~  Amer.   St.  Papers':  F.   R.,  v.  4,  106. 

8  Ib.  v.  3,   750;  vol.  4,   106,  363,  402,  645:  Benton's  Thirty  Years'  View,  v.   i;  90-1. 


I72  LEGAL  AND  HISTORICAL  STATUS 

ment  to  make  compensation  for  this  property,  which,  having 
been  scattered,  it  could  not  restore  specifically,  and  full  "value 
of  the  slaves  was  paid  to  the  United  States  to  be  paid  to  their 
owners."1  Northern  men  led  the  negotiations  in  these  cases. 
Under  what  municipal  law  did  the  property  rights  in  these 
slaves  originate  and  exist  or  find  sanction?  By  virtue  of  the 
Constitution  of  the  United  States  alone, — for  many  of  these 
slaves  were  from  the  District  of  Columbia,  and  the  District 
was  then  as  now  under  the  exclusive  and  plenary  control  of  the 
Federal  Government.  Congress  often  recognized  the  property 
rights  adhering  in  slaves,  and  those  other  than  runaways,  too, 
when  the  slaves  had  been  carried  beyond  the  limits  of  the  btate 
the  laws  of  which  created  the  slave  property.10  Congress,  in 
April,  1862,  voted  a  payment  of  one  million  dollars  for  the 
slaves  belonging  to  the  citizens  of  the  District  of  Columbia, 
and  which  were  held  by  virtue  of  the  Constitution  of  the 
United  States.11  This  legislation  was  by  Northern  Republi 
cans,  and  was  a  measure  that  had  been  proposed  by  Lincoln 
himself  while  a  member  of  Congress.12 

That  the  Constitution  of  the  United  States  recognized 
the  property  in  a  slave,  and  protected  the  master's  right  while 
that  property  remained  in  a  Territory,  had  received  important 
judicial  recognition  before  the  decision  of  the  Dred  "Scott  Case. 
Both  the  political  and  judicial  branches  of  this  government 
had  recognized  the  slave-property-protecting  nature  of  the 
Federal  Constitution  when  the  two  came  together  in  a  Terri 
tory,  thus  giving  the  weightiest  precedents  for  the  Dred  Scott 
decision  upon  this  branch  of  the  case. 

In  the  first  constitution  of  the  State  of  California,  and 
in  her  early  laws  pursuant  thereto,  provision  was  made  for 
prohibiting  slavery  under  State  rule;  but  at  the  same  time 


9  Benton,  v.   2,   182-3. 

10  For    instance,    see    Repts.,    Com.    36,    Cong,    ist    sess.,    No.    471.    p.    1-15;    Cong. 
Glob,  April,   1862. 

11  For    an    interesting    examination    of   the    laws    of    the    District    regulating    slaves, 
authorizing   the    sale   of   slaves,    etc.,    pursuant   to    Federal    authority,    see    William    Jay, 
"A    View    of   the    Action    of    the    Federal    Government    in    Behalf    of    Slavery"    (1833). 

12  Bell,   Letters   and   Addresses  of   Lincoln,    360. 


OF    THE    DEED    SCOTT    DECISION 

the  legality  of  the  slave  property  brought  to  her  territory  prior 
to  her  admission  as  a  State,  was  recognized  and  provision  for 
the  preservation  of  such  property  rights  was  made.  In  Octo 
ber,  1852,  some  negroes  who  had  been  carried  from  a  slave 
State  to  California  during  her  territorial  existence,  were  ar 
rested  for  removal.  For  several  months  prior  to  the  arrest 
these  negroes  had  been  in  business  for  themselves.  Their  case 
came  before  the  supreme  court  of  the  State  on  a  writ  of  habeas 
corpus.  There  was  nothing  to  embarrass  the  questions  in 
volved.  Did  the  Constitution  of  the  United  States  extend  to 
the  Territory  of  California  during  its  territorial  existence; 
and  if  so,  did  it  preserve  and  protect  property  in  slaves? 

Concurring  with  the  opinion  of  the  court,  which  remanded 
the  negroes  to  their  former  slavery,  Mr.  Justice  Alexander 
Anderson  said : 

"The  institution  of  slavery  in  the  United  States  is  both 
political  and  municipal.  .  .  .  Slaves  were  recognized  by  the 
Constitution  of  the  United  States  as  property,  and  protected; 
...  It  is  appropriate  to  repeat,  that  the  political  character  of 
the  institution  of  slavery  goes  with  the  extent  of  the  national 
territory  wherever  that  is ;  and  the  constitutional  rights  and 
eminency  of  the  Republic  prevail  at  the  moment  of  the  acces 
sion  of  new  territory.  Congress  may  modify  the  forms  in 
which  it  shall  be  exercised,  and  regarded;  but  this  must  be 
'sub  modo'  pursuant  to  that  instrument  itself.  .  .  The  prop 
erty  here  brought  into  question  is  that  of  slaves.  The  Con 
stitution  of  the  United  States  was  in  full  force  here.13  Slaves 
were  as  much  recognized  by  that  as  property,  as  any  other 
objects  whatever.  .  .  . 

"When  the  United  States  acquired  the  Territory  of  Cali 
fornia,  it  became  the  common  property  of  all  the  people  of  all 
the  States,  and  the  right  of  emigration  of  every  species  of 
property  belonging  to  the  citizen  was  inherent  with  its  use  and 
possession.  By  the  fifth  article  of  the  amendments  of  the  Con- 


1848 
Cal 


13  See  in  Richardson's  Messages  and  Papers  Buchanan,  Secretary  of  State,  Oct.  7, 
8,  to  Voories,  a  Government  official,  saying  the  Constitution  was  extended  over 
ifornia  May  30,  1848,  on  the  day  of  the  treaty  with  Mexico. 


174  LEGAL  AND  HISTORICAL  STATUS 

stitution,  it  is  expressly  provided  'that  no  person  shall  be  de 
prived  of  his  property  without  due  process  of  law.  .  .  .  ;'  these 
negroes,  therefore,  being  property  as  before  shown  when 
brought  into  California  [which  was  before  she  became  a  State] 
so  remained.  .  .  . 

"It  was  the  vast  and  unexampled  discovery  of  gold  which 
brought  together  an  excited  population.  The  man  of  the 
North  came  with  his  capital  in  the  shape  of  bales  ot  goods — 
he  of  the  South  sometimes  with  his  slaves.  The  course  of  the 
argument  now  made  finds  equal  authority  and  protection  for 
both,  under  the  broad  shield  of  the  common  Constitution; 
and  that  the  property  of  neither  can  be  taken  by  a  surprise, 
or  a  strategy,  nor  without  just  compensation,  and  that  both 
had  equal  rights  to  come  to  this  golden  and  sunny  land."14 

The  most  interesting  of  the  cases  relied  upon  by  the  Cali 
fornia  court  is  that  of  the  United  States  vs.  the  Armistad,15 
where,  again,  Mr.  Justice  Story,  that  uncompromising  foe 
to  slavery,  delivered  the  opinion  of  the  court. 

The  Spanish  schooner,  Armistad,  in  June,  1831,  Avas  carry 
ing  negroes  recently  kidnapped  from  Africa,  from  one  port  in 
Cuba,  a  Spanish  possession,  to  another  port  in  the  same  coun 
try.  The  slaves  rose  in  revolt,  slew  the  captain,  and  spared 
the  lives  of  the  two  other  Spaniards,  who  claimed  to  be  their 
masters,  on  condition  that  they  would  navigate  the  ship — 
the  negroes  being  entirely  ignorant  of  navigation — to  Africa 
or  some  other  country  where  slavery  was  not  legal.  But  the 
Spaniards,  Ruiz  and  Montez,  deceived  the  negroes  and  sailed 
for  the  United  States,  landing  off  the  coast  of  New  York. 
United  States  officers,  perceiving  the  vessel  wTas  in  distress, 
being  in  the  power  of  a  dangerous  and  insurrectionary  number 
of  negroes,  took  possession  of  her  and  the  negroes,  and  landed 
them.  Proceedings  were  instituted  in  the  United  States  courts, 
the  officers  claiming  pay  for  assisting  the  vessel  in  its  need, 
and  the  Spaniards  claiming  as  slave  the  negroes,  asking  that 


14  In  re  Perkins',   2  Hepburn's   Calif.   R.   452,  455,  459. 

15  15   Peters,   590-3. 


OF    THE    DRED    SCOTT    DECISION  175 

they  be  delivered  to  them  as  their  property ;  while  the  negroes 
asserted  a  right  to  freedom,  claiming  to  have  been  free-born 
men  recently  kidnapped  from  Africa. 

Under  our  treaty  provisions  with  Spain,  we  were  under 
obligations  to  protect  Spanish  property,  without  special  men 
tion  of  slave  property,  which  temporarily  and  with  no  intent 
to  violate  our  laws  came  within  our  jurisdiction.  Said  Mr. 
Justice  Story,  delivering  the  opinion  of  the  court :  "If  these 
negroes  were,  at  the  time,  lawfully  held  as  slaves  under  the 
laws  of  Spain,  and  recognized  by  the  laws  as  property  capable 
of  being  lawfully  bought  and  sold ;  we  see  no  reason  why  they 
may  not  justly  be  deemed  within  the  intent  of  the  treaty,  to 
be  included  under  the  denomination  of  merchandise,  and,  as 
such,  ought  to  be  restored  to  the  claimants ;  for,  upon  that 
point,  the  laws  of  Spain  would  seem  to  furnish  the  proper 
rule  of  interpretation." 

The  court  then  gives  judgment  that  the  negroes  be  re 
manded  to  their  Spanish  owners,  to  be  carried  out  of  the  United 
States  because  the  word  property  comprehended  negro  slaves 
just  as  any  other  "denomination  of  merchandise,"  the  Spanish 
slave  law  following  to  the  "free"  State. 

After  the  free  laws  of  Pennsylvania  had  become  operative 
Major  Sevier,  a  son  of  the  historic  General  Sevier,  carried  to 
Philadelphia  from  his  home  in  a  Territory,  that  section  which 
is  now  the  State  of  Tennessee,  some  negro  slaves,  and  retained 
them  in  Pennsylvania  for  a  number  of  years.  These  slaves 
were  property  by  virtue  of  the  laws  of  the  Southwest  Terri 
tory.  Unless  they  were  property  by  virtue  of  the  Constitution 
of  the  United  States,  since  a  Territory  derives  all  of  its  legis 
lative  authority  from  that  instrument,  plainly  they  were  not 
property.  Sevier,  having  exercised  ownership  over  the  negroes 
while  in  Pennsylvania  just  as  had  Emerson  over  Scott  while 
outside  of  Missouri,  proposed  to  carry  this  property  back  to 
his  home.  The  negroes  refused  to  go  and  appealed  to  the 
courts,  insisting  that  the  Pennsylvania  anti-slavery  law  had 
destroyed  the  property  right.  The  questions  which  presented 


176  LEGAL  AND  HISTORICAL  STATUS 

themselves  to  the  court  were  patent :  Were  these  negroes  prop 
erty  under  and  by  virtue  of  the  laws  of  the  Territory?  If  so, 
did  that  property  right  follow  them  to  Pennsylvania  and  adhere 
to  them  while  they  remained  there?  The  case  finally  reached 
the  supreme  court  of  the  State,  and  in  1795  the  court  adjudged 
the  slaves  to  be  property,  and  remanded  them  to  their  master 
who  returned  them  to  his  home  in  the  Southwest  Territory.16 

"Being  property  when  brought  into"  the  Territory  sought 
to  be  affected  by  the  Missouri  Compromise,  "Dred  Scott  and 
his  family  so  remained,"  said  the  Supreme  Court  of  the  United 
States,  because,  as  the  California  and  the  Pennsylvania  courts 
held,  slaves  were  as  much  recognized  by  the  Federal  Constitu 
tion  as  property  as  "any  other  objects  whatsoever." 

During  our  war  with  the  Seminoles  in  Florida,  in  1837 
and  1838,  a  large  number  of  those  Indians  were  emigrated  west 
of  the  Mississippi  river.  They  carried  with  them  a  "consider 
able  number  of  negroes,  who  had  been  claimed  and  lawfully 
held  as  slaves  by  Indians  of  the  tribe,"  the  attorney-general 
for  the  United  States  tells  us.  At  its  expense  the  government 
moved  both  the  Indians  and  their  "property  of  great  intrinsic 
value,"  and  settled  the  tribe  in  the  \Yestern  Territory.  There 
the  negroes  continued  "in  the  possession  and  service  of  their 
Indian  masters"  until  1846.  A  large  number  then  went  into 
the  Federal  fort  pursuant  to  an  offer  of  qualified  freedom  made 
by  an  officer  in  command  of  Federal  troops.  In  June  1848 
J.  Y.  Mason,  former  attorney-general  and  then  attorney-gener 
al  ad  interim,  having  under  consideration  this  case  and  the 
case  of  slaves  that  had  been  captured  in  that  war  both  by  our 
troops  and  by  Indians  acting  as  our  allies,  said :  "The  legal 
principles  applicable  to  the  subject  appear  to  me  to  be  free 
from  difficulty.  Regarded  as  persons,  the  negro  slaves  had  no 
power  to  contract,  and  therefore  could  not  enter  into  any 
treaty  or  convention.  Regarded  as  property  when  captured, 
they  were  to  be  treated  as  any  other  movable  property  cap 
tured  from  an  enemy  in  a  land  war.  ..."  He  then  pointed 


16  Yates,  Perm.    Rep.    481. 


OF    THE    DRED    SCOTT    DECISION  177 

out  that  our  government  had  restored  all  captured  slaves  to 
their  former  masters  where  their  "status  ante  bellum"  was  es 
tablished.  And  in  the  case  of  the  others  he  held  that  they  must 
be  returned  to  their  former  masters,  saying,  "I  do  not  per 
ceive  on  what  principles  you  can  interfere  to  deprive  the  Sem- 
inoles  of  their  property,  to  give  to  their  slaves  any  qualified 
freedom."17 

Again  in  1855  negro  slave  property  belonging  to  Indians 
outside  of  the  municipal  regulations  of  any  State,  was  recog 
nized  and  protected  by  the  Federal  Government.18  These 
instances  are  representative  of  the  rule  upon  which  the  Federal 
Government  acted  through  its  legislative  and  executive  de 
partments  concerning  the  property  nature  of  slaves  found 
within  the  jurisdiction  of  the  United  States  and  outside  the 
jurisdiction  of  any  State.  Now  let  me  give  another  inter 
esting  precedent  from  the  judicial  branch. 

In  the  circuit  court  for  the  United  States,  for  the  district 
covering  Massachusetts,  at  Boston  in  May,  1816,  an  appeal 
from  a  decision  of  the  United  States  district  court  came  before 
Associate  Justice  Joseph  Story  of  the  United  States  Supreme 
Court,  and  the  district  judge.  The  case  is  a  most  important 
judicial  precedent  in  support  of  the  doctrine  upon  the  point 
now  before  us.  Its  facts  are:  Arthur  Emerson  of  Norfolk, 
Virginia,  owned  a  negro  slave,  Ned.  In  1811,  he  hired  Ned 
on  board  the  Ann  Alexandria,  one  Kempton,  master,  on  a  voy 
age  first  to  Liverpool,  England,  and  thence  to  one  or  more 
ports  on  the  continent  of  Europe,  and  thence  back  to  some 
point  in  the  United  States.  "The  ship  safely  arrived  at  Liver 
pool,  and  sailed  from  thence  to  Archangel,  in  Russia,  in  Jan 
uary,  1812,  and  while  on  the  voyage,  on  the  5th  of  July  fol 
lowing,  was  captured  by  a  Danish  cutter,  and  carried  into 
Drontheim,  in  Norway"  in  the  hope  of  being  adjudged  a 
prize.  But  the  United  States  secured  her  release.  In  September, 
and  before  the  ship  was  released,  Kempton  discharged  his 


4    Opinion    of    U.    S.    Attys'.-Gen.,    726,    729. 
Ib.   v.    7,   728. 


178  LEGAL  AND  HISTORICAL  STATUS 

crew,  and  did  not  proceed  to  Archangel.  But  in  1813  he  took 
a  new  cargo  and  sailed  for  Ireland.  Landing  his  cargo  there 
he  went  to  Liverpool,  and  from  thence  sailed  for  the  United 
States,  and  arrived  at  Boston  in  March,  1814.  At  Dron- 
theim,  Ned,  having  been  discharged  as  no  longer  needed,  went 
immediately  on  board  the  Frederick,  then  about  to  sail  for 
London.  Kempton  told  Coffin,  the  captain  of  the  Frederick, 
that  Ned  was  a  slave,  and  asked  him  to  make  an  effort  to  se 
cure  for  the  negro  passage  from  London  to  the  United  States. 
At  London  Coffin  did  procure  Ned  passage  on  a  vessel  bound 
for  the  United  States,  and  on  board  of  it  saw  him  for  the 
last  time;  "but  there  was  no  positive  evidence  that  Ned  came 
in  her,  or  had  ever  returned  to  the  United  States,"  though  the 
ship  arrived  in  New  York  March  29,  1813.  Now  Ned's  master 
brought  suit  to  recover  the  wages  he  was  to  have  for  the  hire 
of  Ned,  and  insisted  that  he  was  to  be  paid  from  the  time  the 
negro  left  up  to  the  I2th  of  March,  1814,  the  date  of  Kemp- 
ton's  arrival  in  Boston  on  the  return  voyage.  What  was 
Ned's  status?  He  had  been  in  free  territory — the  English 
courts,  and  they  are  quoted  by  Judge  Curtis  and  McLean  in 
their  dissenting  opinions,  say  a  slave  becomes  free  in  England. 
Now  if  Ned  became  free  then  most  certainly  the  Virginia 
master  could  not  recover  his  wages.  The  laws  of  Virginia 
either  followed  him  fixing  his  status  or  they  did  not.  If 
they  did,  then  the  master  was  entitled  to  recover  the  wages 
of  his  slave.  There  were  no  complications  in  the  case.  Ned 
was  not  a  runaway,  but  \vas  in  free  territory  by  virtue  of  his 
master's  will,  and  for  a  temporary  purpose,  just  as  was  Scott 
with  Dr.  Emerson — a  remarkable  co-incidence  in  names.  If 
being  on  free  soil  could  avoid  the  positive  laws  of  slavery,  then 
Ned  was  free.  If  free,  then  his  master  had  no  right  to  his 
wages  after  he  left  Virginia.  That  is  a  plain  proposition.  Mr. 
Justice  Story — that  uncompromising  friend  of  the  free-labor 
States — delivered  the  opinion  of  the  court.  AYatch  him :  ''The 
next  question  is  as  to  the  validity  of  the  discharge  of  the  slave 
at  Drontheim.  It  is  the  settled  rule  of  this  court,  that  the 


OF    THE    BRED    SCOTT    DECISION  179 

capture  of  a  neutral  ship  does  not  of  itself  dissolve  the  con 
tract  of  manners'  wages.  The  ultimate  effect  that  can  be  at 
tributed  to  it,  is,  that  it  suspends  the  contract,  which  is  revived 
or  extinguished  by  the  ultimate  acquittal  or  condemnation. 
The  seamen,  therefore,  are  not  bound  to  quit  the  ship  imme 
diately  upon  the  capture,  nor  can  the  master  compel  them  to 
receive  a  discharge.  They  have  a  right  to  remain  by  the  ship 
until  a  sentence  of  condemnation  or  acquittal  has  passed,  or 
all  reasonable  hope  of  recovery  is  gone. 

"But  if  with  the  consent  of  the  master,  they  leave  the 
ship,  they  are  not  prejudiced  in  their  rights;  and  their  title 
to  wages  for  the  previous  period  of  the  voyage  will  be  con 
firmed  or  destroyed,  according  to  the  event  of  the  ultimate 
adjudication.  And  such  would  have  been  the  principles  ap 
plicable  in  the  present  case,  if  the  discharged  mariner  had 
possessed  a  legal  capacity  to  make,  and  dissolve,  the  contract 
for  wages.  His  discharge  would  then  have  been  a  voluntary 
act,  and  binding  upon  him ;  and  as  the  ship  was  restored,  his 
title  to  full  wages  for  the  antecedent  term  of  service  would 
have  been  perfect.  But  such  a  legal  capacity  can  in  no  re 
spect  be  attributed  to  him.  The  contract  for  his  wages  was 
entered  into  by  his  owner  in  Virginia;  and  must,  therefore, 
be  construed  with  reference  to  the  Ic.v  loci  contractus.  In  Vir 
ginia  slavery  is  expressly  recognized;  and  the  rights  founded 
upon  it  are  incorporated  into  the  whole  system  of  the  laws  of 
the  State.  The  owner  of  the  slave  has  the  utmost  complete 
and  perfect  property  in  him.  The  slave  may  be  sold  or  de 
vised,  or  may  pass  by  descent,  in  the  manner  as  other  inherit 
able  estate.  He  has  no  civil  rights  or  privileges.  He  is  in 
capable  of  making  or  discharging  a  contract ;  and  the  per 
petual  right  to  his  service  belongs  exclusively  to  his  owner. 
Tt  follows  from  these  considerations,  that  the  discharge  of  the 
slave  at  Drontheim,  even  with  his  own  consent,  was  an  un 
authorized  act,  and  in  no  respect  binding  upon  the  plaintiff 
[the  Virginia  master.]  As  the  latter  never  assented  to,  or 


ISO  LEGAL  AND  HISTORICAL  STATUS 

ratified  it,  it  was,  as  to  him,  a  tortuous  act,  and  draws  after  it 
all  the  consequences  of  an  unjustifiable  discharge."19 

This  is  a  representative  case  of  the  many  found  in  our 
court  reports.  The  decision  was  rendered  by  a  native  of  Mas 
sachusetts,  Judge  Story,  one  of  our  most  able  jurists,  and  a 
man  entirely  unfriendly  to  the  institution  of  slavery  as  such. 
This  decision  and  the  many  of  which  it  is  a  fair  representa 
tive  show  that  the  American  interpretation  of  the  wTord  prop 
erty  in  its  relation  to  the  negro  slave  was  that  "the  perpetual 
right  to  his  services  belongs  exclusively  to  his  owner"  under 
the  Constitution  after  he  had  passed  beyond  the  laws  of  the 
State  legalizing  such  property. 

Look  into  the  adjudications  in  any  of  the  Northern  States 
and  there  we  find  that  the  slave  was  property  no  matter  where 
found,  and  that  the  rules  of  litigation  concerning  property 
interests  in  him  differed  in  no  respect  from  those  applied  to 
any  other  property.  Of  this  fact  a  representative  statement 
is  found  in  the  charge  of  Judge  Baldwin,  associate  justice  of 
the  Supreme  Court  of  the  United  States,  to  a  Federal  jury  in 
1833  'm  Pennsylvania,  when  in  Johnson  vs.  Tompkins  he  said: 
"On  a  question  of  freedom  or  slavery  the  right  is  to  be  estab 
lished  by  the  same  rules  of  evidence  as  in  other  contests  about 
the  right  to  property."20  As  authority  he  cited  the  decision 
of  the  Supreme  Court  of  the  United  States  which  had  an 
nounced  the  same  rule21  in  1813. 

In  1871,  most  of  the  judges  who  decided  the  Dred  Scott 
Case  having  disappeared  from  the  bench,  the  Supreme  Court 
in  Osborne  vs.  Nicholson,  decided,  Chief  Justice  Chase  alone 
dissenting:  "Slavery  was  originally  introduced  into  the  Amer 
ican  colonies  by  the  mother  country,  and  into  some  of  them 
against  their  will  and  protestations.  In  most,  if  not  all  of 
them,  it  rested  upon  universally  recognized  custom,  and  there 
were  no  statutes  legalizing  its  existence  more  than  there  were 
legalizing  the  tenure  of  any  other  species  of  personal  proper- 


19  Emerson  v.   Rowland  et  al.,   i    Mason's  Circuit   Court  Rep.    50-1. 

*°  i   Baldwin  (U.  S.  C.   C.),  577. 

21  Minnie   Queen  vs.   Hepburn,   7   Cranch,  295. 


OF    THE    DRED    SCOTT    DECISION  l8l 

ty.  Though  contrary  to  the  law  of  nature,  it  was  recognized 
by  the  law  of  nations.  The  institution  of  slavery  has  existed 
largely  under  the  authority  of  the  most  enlightened  nations  of 
ancient  and  modern  times.  Wherever  found,  the  rights  of  the 
owner  have  been  regarded  there  as  surrounded  by  the  same 
sanctions  and  covered  by  the  same  protection  as  other  property. 
The  British  government  paid  for  the  slaves  carried  off  by  its 
troops  from  this  country,  in  the  war  of  1812,  as  they  did  for 
other  private  property  in  the  same  category.'^ 

This  opinion  and  decision  were  rendered  by  Justices  Nel 
son,  Swayne,  Davis,  Strong,  Clifford,  Miller,  Field,  and  Brad 
ley.  No  one  can  say  that  the  institution  of  slavery  had  friends 
upon  the  bench  at  this  time.  But  of  those  who  participated  in 
the  decision  and  opinion  the  Republican  party  counted  some 
very  strong  adherents.  Justices  Miller,  Strong,  and  Bradley 
rendered  that  party  an  important  partizan  service  on  the  Elec 
toral  Commission  of  1877,  which,  by  a  narrow  margin  of  eight 
Republicans  to  seven  Democrats,  declared  Garnejcl  President 
over  Tilden  in  the  face  of  some  of  the  most  disgraceful  frauds 
and  forgeries  ever  committed  by  the  Republican  party.  So  that 
the  decision  in  Osborne  vs.  Nicholson  was  rendered  by  the 
greatest  possible  extreme  of  "the  slave  power,"  whatever 
that  was,  if  it  ever  were.  The  case  directly  involved  the  nature 
of  the  property  rights  in  slaves,  as  the  suit  was  an  action 
seeking  to  enforce  the  payment  of  a  note  executed  for  slaves 
bought  March  26,  1861,  in  Arkansas. 

Slaves  being  property  in  the  sense  in  which  any  other 
article  is  property,  according  to  this  court's  decision,  the  mak 
er  was  required  to  pay  the  note.  Further  on  in  its  opinion  the 
court  says:  "Many  cases  have  been  decided  by  the  highest 
State  courts  where  the  same  questions  were  raised  which  we 
have  been  called  upon  to  consider  in  this  case.  In  very  nearly 
all  of  them  the  contract  was  adjudged  to  be  valid,  and  was 
enforced.  They  are  too  numerous  to  be  named.  The  opinions 
in  some  of  them  are  marked  by  great  ability." 

22  13  Wallace,  661;  citing  Le  Louis,  2  Dodson,  250;  i  Phillmore,  Law  of  Nations, 
316;  i  Wildmore,  Intern.  Law,  70;  Dana's  Wheaton,  199;  The  Antelope,  10  Wheaton 
67. 


182  LEGAL  AND  HISTORICAL  STATUS 

At  the  same  term  the  court  decided  White  vs.  Hart,  in 
volving-  a  similar  question,  with  the  additional  one  as  to  the 
validity  of  that  clause  in  the  constitution  of  Georgia,  adopted 
in  1868  while  the  State  was  under  the  dominion  of  the  Recon 
struction  acts,  wherein  it  was  declared  that  no  court  shall 
have  jurisdiction  to  try  or  give  judgment  on,  or  enforce  any 
debt,  the  consideration  of  which  was  a  slave,  or  the  hire  there 
of.  The  court,  Chase  dissenting,  held  that  this  provision  as  to 
such  debts  contracted  thertofore,  was  void  because  ex  post  facto 
and  impaired  the  obligation  of  contracts  concerning  property 
just  in  the  same  sense  as  if  the  note  had  been  given  for  a 
horse.  The  court  further  decided  that  the  fact  that  the  State 
was  under  the  supervision  of  the  Federal  Government  under 
the  Reconstruction  acts  did  not  alter  the  law  of  the  case,  be 
cause  kiif  Congress  had  expressly  dictated  and  expressly  ap 
proved  the  provision  in  question,  such  dictation  and  approval 
would  be  without  effect.  Congress  has  no  power  to  supersede 
the  National  Constitution."23 

Though  it  is  a  digression  as  to  the  immediate  point  before 
us,  I  am  impelled"  to  call  attention  to  the  fact  that  in  this  case 
the  court  further  decided :  "As  the  case  is  disclosed  on  the 
record  we  entertain  no  doubt  of  the  original  validity  of  the 
note,  nor  of  its  validity  when  the  decision  before  us  [by  the 
trial  court]  was  made.  But  as  that  question  was  not  raised 
in  this  case,  we  deem  it  unnecessary  to  remark  further  upon 
the  subject."24  Here  a  Republican  member  of  the  court  de 
cided  the  merits  of  questions  not  even  raised  in  the  case  before 
it,  although  shown  upon  the  record,  and  which  had  no  im 
mediate  connection  with  the  grounds  upon  which  the  court 
rested  its  decision:  in  the  Dred  Scott  Case  the  court  decided 
the  merits  of  the  questions  raised  in  the  record,  vigorously  ar 
gued,  and  which  bore  directly  upon  the  judgment  in  the  case. 
Yet  ever  since  the  Dred  Scott  decision  especially  Republicans 
and  anti-Southern  people  have  been  shouting  ''Obiter  dicta!" 


13  Wallace,  649,  652. 
b.   654- 


OF    THE    DRED    SCOTT    DECISION  183 

Again  in  1873  in  Boyce  vs.  Tabb25  the  Supreme  Court 
rendered  a  decision  sustaining  the  same  principles  as  those 
decided  in  Osborne  vs.  Nicholson  and  in  White  vs.  Hart.26 
Xo\v  notice  the  applicability  to  property  rights  in  a  Territory 
and  under  the  Constitution.  The  institution  of  slavery  be 
longed  to  the  common  law  as  it  was  recognized  in  the  colonies 
at  the  time  of  our  separation  from  England.  "It  rested  upon 
universally  recognized  custom,  and  there  was  no  statutes  legal 
izing  its  existence  more  than  there  were  legalizing  the  tenure 
of  any  other  species  of  personal  property."  It  "was  sur 
rounded  by  the  same  sanction  and  covered  by  the  same  protec 
tion  as  other  property."  It  was  not  a  peculiar  class.  There 
fore,  when  the  word  property  was  used  in  the  Constitution, 
it  comprehended  this  class  of  property  "held  by  the  same  ten 
ure  as  any  other  species  of  personal  property."  Being  thus 
recognized  and  thus  protected  differing  in  no  respect  whatever 
from  other  personal  property,  it  was  comprehended  by  and  pro 
tected  under,  just  as  any  other  property,  the  fifth  amendment 
of  the  Constitution  which  forbids  Congress  to  destroy  or  take 
property  without  due  process  of  law,  a  provision  applicable 
in  a  Territory  no  less  than  in  a  State,  for  it  indicates  an  entire 
absence  of  power  in  the  Federal  Government.  An  act  which 
takes  one  man's  property  and  gives  it  to  another  without  just 
compensation,  is  not  due  process  of  law,  decided  the  court  in 
Osborne  vs.  Nicholson ;  and  this  is  as  certainly  true  of  an  act 
which  takes  one  man's  property  and  gives  it  to  no  one,  without 
just  compensation  to  the  owner. 

Turn  where  we  may;  scrutinize  history  before  the  Con 
stitution  ;  look  in  upon  the  convention  that  drafted  that  great 
charter;  listen  to  the  debates  in  the  various  gatherings  when 
the  States,  zealous  for  the  preservation  and  retention  of  every 
possible  right,  were  analyzing  every  word  of  the  proposed 
instrument  to  find  what  powers  were  being  entrusted  to  any 
branch  of  the  Federal  Government;  consider  the  express  pur- 

^  1 8  Wall.   546. 

26  See  also  French  vs.  Tumlin,  9  Fed.  Cases,  No.    5,    104,  also  decided  in   1871. 


184  LEGAL  AND  HISTORICAL  STATUS 

pose  and  the  actual  force  of  the  amendments  made  after  rati 
fication  of  the  original  draft ;  go  to  the  practical  contemporary 
constructions  begun  with  the  first  moment  of  the  Constitu 
tion  and  continued  unbroken  down  to  the  Dred  Scott  decision, 
— constructions  by  Congress,  by  all  the  departments  of  the 
government  including  diplomatic  agents  and  representatives 
from  all  sections  of  the  country  and  at  one  time  or  another  be 
longing  to  all  parties,  who  settled  our  disputes  with  foreign 
countries,  and  by  the  judiciary  in  Federal  courts  or  in  State 
courts  or  in  the  Territories,  adjudicating  cases  arising  on  the 
land  or  on  the  high  seas, — and  we  find  that  property  in  slaves 
was  not  an  exceptional  class.  With  the  decision  of  the  court 
every  impartial  mind  must  agree  that  then,  "if  the  Constitu 
tion  recognizes  the  right  of  property  of  the  master  in  a  slave, 
and  makes  no  distinction  between  that  property  and  other 
property  owned  by  a  citizen ;  no  tribunal,  acting  under  the 
authority  of  the  United  States,  whether  it  be  legislative,  execu 
tive,  or  judicial,  has  a  right  to  draw  such  a  distinction,  or 
to  deny  to  it  the  benefit  of  the  provisions  and  guarantees  which 
have  been  provided  for  the  protection  of  private  property 
against  the  encroachment  of  the  government.''  Hence,  in  view 
of  the  fact  that  power  to  destroy  or  impair  property  rights  in 
express  terms  is  denied  Congress,  we  see  it  could  not  destroy 
that  property  in  a  slave  in  a  Territory  or  elsewhere,  because 
the  words  of  the  prohibition  "are  general,  and  extend  to  the 
whole  territory  over  which  the  Constitution  gives  it  power 
to  legislate,  including  those  portions  of  it  remaining  under 
territorial  government  as  well  as  that  covered  by  States.  It 
is  a  total  absence  of  power  everywhere  within  the  deminion 
of  the  United  States,  and  places  the  citizens  of  a  Territory,  so 
far  as  these  rights  are  concerned,  on  the  same  footing  with 
citizens  of  the  States,  and  guards  them  as  plainly  and  firmly 
against  any  inroads  which  the  general  government  might 
attempt,  under  the  plea  of  implied  or  incidental  powers."27 
To  us  of  to-day  the  thought  of  property  in  man  is  repul- 


21  19   Howard,  450-51. 


OF    THE    DRED    SCOTT  '  DECISION  185 

sive.  So  it  was  to  the  vast  majority  of  our  Southern  ancestors, 
and  to  the  few  yet  living  who  inherited  that  property.  But  we 
must  not  forget  that  the  South,  to  the  preservation  of  the 
slave  property  of  which  the  Federal  Government  was  pledged, 
was  no  more  responsible  for  her  slaves  than  were  the  people 
of  Massachusetts  for  hers.  For  commercial  and  party  pur 
poses  the  Republican  party  became  pronounced  rebels  against 
our  government.  The  over-conscientious  in  the  North  saw 
only  what  he  believed  to  be  the  interest  of  the  slave,  entirely 
overlooking  the  interest  of  the  white  people  whose  property 
he  was.  This  country  cannot  endure  half  slave  and  half  free, 
said  Lincoln,  but  by  coercion  and  not  by  constitutional  amend-j 
nient  it  was  proposed  to  shift  the  burden  entirely  upon  the 
South  and  give  the  Northern  white  man  an  advantage  in  the 
Territories  over  the  white  man  from  the  South.  If  the  gov 
ernment  was  not  what  it  should  have  been,  not  what  the  Re 
publican  party  of  the  North  thought  it  should  have  been,  they 
had  a  right  of  revolution;  but  at  no  time  had  any  section  or 
party  claiming  allegiance,  the  right  to  repudiate  and  to  nul 
lify.  To  quote  Judge  Baldwin  again,  to  visit  disapproval  of 
the  government  formed  by  all  our  forefathers  "on  those  who 
have  honestly  acquired  and  lawfully  hold  property,  under  the 
guarantees  and  protection  of  the  laws,  is  the  worst  of  all  op 
pression,  and  the  rankest  injustice  toward  our  feliowmen." 
Fiske  says:  "A  majority  held  that  Dred  Scott  was  not  a 
citizen  of  Missouri,  but  a  thing."28  The  same  logic  would  lead 
us  to  conclude,  since  a  foreigner  is  not  a  citizen,  he  is  ''but  a 
thing."  That  a  slave  was  property  did  not  reduce  him  to  the 
level  of  the  horse.  My  horse  and  my  plow  are  both  my  prop 
erty.  I  may  entirely  destroy  my  plow,  but  if  I  mistreat  my 
horse  the  law  interferes.  The  State  law  has  provided  for  the 
protection  of  the  horse;  the  slave  labor  States  had  provided 
for  the  humane  protection  of  slave  property  as  for  no  other 
property.  The  horse  has  higher  rights  than  the  plow ;  the 


26  Hist.  U.  S.  346.  Many  writers'  make  this  blunder.  For  instance:  Brice,  Amer. 
Com.,  vol.  i,  263;  Chancellor,  A  Textbook  Amer.  Hist.,  356;  Twentieth  Cent.  Cyc. 
and  Die.  (1903). 


1 86  LEGAL  AND  HISTORICAL  STATUS 

slave  has  higher  rights  than  the  horse.  That  a  negro  of  Afri 
can  descent  whose  ancestors  had  been  American  slaves  was  not 
such  a  person  as  meant  by  the  Constitution  when  "citizens  of 
different  States"  are  authorized  to  sue  each  other  in  Federal 
courts,  no  more  rendered  such  a  person  "but  a  thing,"  than  did 
the  decision  that  "citizens  of  different  States"  did  not  mean 
citizens  of  a  Territory  or  of  the  District  of  Columbia;  and 
that,  therefore,  such  persons  could  not  sue  each  other  in  the 
Federal  court  on  the  grounds  of  diverse  citizenship. 


XI. 

NORTHERN    NULLIFICATION   AND 
SOUTHERN    SECESSION 

The  Dred  Scott  decision  is  important  because  of  its  law; 
iits  reception  by  the  North  is  indispensable  to  history  because 
of  its  bearing  upon  the  secession  of  the  Southern  States.  To 
ignore  the  Northern  nullification  to  which  it  gave  opportunity, 
'is  to  neglect  one  of  the  most  important  concrete  justifications 
of  the  secession  of  1861.  Lincoln  waged  a  bloody  and  aggres 
sive  war  to  suppress  secession ;  secession  was  a  defensive  move 
to  defeat  the  most  dangerous  overt  nullification — Northern 
nullifications  of  the  Federal  Government — to  be  found  upon  the 
pages  of  history  dealing  with  constitutional  government.  This 
Northern  nullification  was  more  destructive  of  what  Lincoln 
sought  to  preserve  than  was  the  secession  which  he  fought. 
On  the  pages  of  history  as  sometimes  written,  the  nullifica 
tion  of  South  Carolina  in  1832  stands  gibbeted  under  a  placard 
the  inscription  of  which  declares  the  most  damnable  disloyal 
ty;  while  over  against  it  the  New  England  conspiracy  against 
the  Federal  Government,  is  labeled  as  having  disappeared  from 
the  Northern  States  certainly  not  later  than  1802.  Nothing 
could  be  a  greater  perversion  of  our  history ;  no  story  could  be 
less  fair  to  the  seceding  States. 

The  vast  ramifications  of  the  "underground  railroad"  to 
which  great  numbers  of  the  representative  men  of  the  North, 
from  the  seaboard  New  England  States  to  the  Mississippi 
river,  subscribed,  were  conceived  in  nullification  and  grew  to 
be  powerful  and  dangerous  in  practicing  rebellion ;  the  "Kansas 
War"  was  a  product  of  Northern  nullification  which  ended 
in  overt  and  bloody  rebellion  against  our  National  Govern 
ment  ;  and  nullification  was  one  of  the  most  aggressive  arms 

187 


1 88  LEGAL  AND  HISTORICAL  STATUS 

of  the  Northern  abolitionists.  All  over  the  North  the  free- 
A  labor  States  resisted,  spurned,  repudiated  and  taught  disobe- 
:  dience  to  the  laws  and  to  the  Constitution.  On  July  14,  1851, 
Judge  Levi  Woodbury,  at  the  time  an  associate  justice  of  the 
United  States  Supreme  Court,  in  charging  a  grand  jury  at 
Newport,  Rhode  Island,  called  attention  to  the  fact  that  it  is 
the  citizen's  imperative  duty  "at  every  hazard  to  sustain  the 
laws  until  duly  repealed,"  and  referred  to  the  prevalent  nulli 
fication  as  of  "such  violence  as  to  overthrow  order,  and,  by 
polluting  the  very  sanctuary  of  justice  with  anarchy  and  crime, 
strike  at  the  root  of  all  organized  society."1  In  the  same  year 
Judge  Samuel  Nelson,  an  associate  justice  of  the  same  court, 
whose  circuit  covered  Vermont,  Connecticut,  and  part  of  New 
York,  said : 

"It  is  not  to  be  denied,  that  the  legislation  of  most,  if 
not  all,  of  the  Northern  States,  tending  to  embarrass,  and,  in 
some  instances,  to  annul  the  provisions  of  the  act  of  1793 
[which  provided  for  the  return  of  fugitive  slaves],  has  strong 
ly  impressed  our  Southern  brethren  with  the  conviction  that 
these  States  have  resolved  to  throw  off  this  constitutional  obli 
gation.  They  take  it  for  granted,  and  it  is  difficult  to  deny 
the  inference,  that  the  acts  reflect  the  general  sentiment  of  the 
people  on  this  subject;  and  that  it  must  have  become  deep 
and  abiding,  to  be  sufficiently  powerful  to  mould  the  legisla 
tion  of  the  State.  It  is  this  legislation,  more  than  occasional  riot 
ous  assemblies  in  resistance  of  the  law,  that  has  forced  them  to 
the  question,  whether  the  Union,  with  this  provision  of  the 
fundamental  law  rejected  and  condemned — a  provision  vital 
to  the  rights  and  interests  of  that  portion,  and  without  which 
the  Union  would  never  have  been  formed — is  to  them  a  bles 
sing  or  a  curse.  .  .  .  That  laws  exist  on  the  statute  books 
of  most  if  not  all  of  them,  in  conflict  with  the  acts  of  Congress, 
and  repugnant  to  this  provision  of  the  Constitution,  is  a  matter 
of  history.  That  the  enforcement  of  these  laws  would  be  a 
virtual  abrogation  of  the  provision,  is  not  to  be  denied.  ...  If 


1  Writings   of   Levi   Woodbury,   vol.    2,   20    and   366. 


OF    THE    DRED    SCOTT    DECISION  189 

anyone  supposes  that  this  Union  can  be  preserved,  after  a  ma 
terial  provision  of  the  fundamental  law  upon  which  it  rests  is 
broken  and  thrown  to  the  winds  by  one  section  of  it — a  pro 
vision  in  which  nearly  one-half  of  the  States  composing  it  are 
deeply  and  seriously  interested — he  is  laboring  under  a  delu 
sion  which  the  sooner  he  gets  rid  of  the  better/' 

So  it  was  that  in  constantly  increasing  ratio  as  we  ap 
proach  the  period  of  secession,  the  free-labor  States  through 
their  legislative  machinery  made  it  possible  and  certain  for  their 
citizens  to  mob  the  Federal  laws;  and  the  fanatics,  of  a  numer 
ous  and  dangerous  number,  led  by  such  men  as  John  Brown 
who  was  abetted  by  such  representative  and  prominent  men 
as  Thomas  Wentworth  Higginson,  the  more  widely  known 
Charles  Sumner,  the  great  agitator  Henry  Thoreau,  and  the 
distinguished  political  leader  Governor  John  A.  Andrew,  the 
well-known  Senator  Howe,  and  Ralph  Waldo  Emerson, 
known  to  the  literature  where  the  English  tongue  is  read  or 
spoken,  organized  to  mob  the  Southern  people.2 

No  branch  of  the  Federal  Government  escaped  the  nul 
lifying  virus  that  had  permeated  the  free-labor  States  of  the 
Xorth.  Accordingly  when  the  Dred  Scott  decision  had  been 
handed  from  the  Supreme  Bench,  disappointment  and  indig 
nation  seized  the  State  machinery  and  created  statutes  and 
passed  resolutions  still  more  bitterly  in  nullification  of  the 
Federal  laws.  The  following  concrete  instances  are  fairly 
representative  of  the  conditions  which  confronted  the  South 
when  her  effort  to  escape  the  evil  they  engendered  brought 
her  patriots  to  decide  that  secession  would  be  the  least  hurtful 
and  most  nearly  right  of  all  possible  remedies. 

April  17,  1857,  tne  general  assembly  of  Ohio  passed  a 
joint  resolution  "relative  to  the  decision  in  the  Dred  Scott 
Case,"  in  which  she  declared :  "That  this  general  assembly 
has  observed  with  regret,  that,  in  the  opinion  lately  pronounced 
by  Chief  Justice  Taney  in  behalf  of  the  majority  of  the  Su 
preme  Court  of  the  United  States  in  the  case  of  Dred  Scott 


-  Ewing,    Northern    Rebellion    and    Southern    Secession,    354. 


I  9O  LEGAL  AND  HISTORICAL  STATUS 

against  J.  H.  F.  Sanford,  occasion  has  been  taken  to  pro 
mulgate  extra-judicially  certain  doctrines  concerning  slavery, 
not  less  contradictory  to  well-known  facts  of  history,  than 
repugnant  to  the  plain  provisions  of  the  Constitution,  and 
subversive  to  the  rights  of  freemen  and  free  States. 

4 'That  in  the  judgment  of  this  general  assembly,  every 
free  person,  born  within  the  limits  of  any  State  in  this  Union, 
is  a  citizen  thereof,  and  to  deny  to  such  person  the  right  of  sue- 
ing  in  the  courts  of  the  United  States,  in  a  palpable  and  unwar 
rantable  violation  of  that  sacred  instrument. 

"That  the  doctrine  announced  by  the  Chief  Justice,  in 
behalf  of  the  majority  of  the  court,  that  the  Federal  Constitu 
tion  regards  slaves  as  mere  property,  and  protects  the  claims 
of  masters  to  slaves,  to  the  same  extent,  and  in  the  same  man 
ner  as  the  rights  of  owners  in  property,  foreshadows,  if  it 
does  not  include  the  doctrine,  that  masters  may  hold  slaves  as 
property  within  the  limits  of  free  States,  during  ^temporary  vis 
its,  or  for  purposes  of  transit,  to  the  practical  consequences 
of  which  doctrine  no  free  State  can  submit  with  honor." 

Because  Ohio  and  other  States  found  it  incompatible  with 
their  sense  of  honor  to  submit  to  the  laws,  the  South  insisted 
that  she  could  not  with  honor  submit  to  the  consequences  of 
the  Northern  illegality.  Ohio  herself  had  formulated  and 
enforced  the  strongest  possible  precedent  for  the  Dred  Scott 
decision.  At  the  very  time  she  announced  her  determination 
not  to  submit  to  the  laws  as  interpreted  by  the  Supreme  Court, 
her  own  laws,  which  had  been  enforced  with  relentless  inhu 
manity,  declared  that  negroes,  no  matter  whether  born  free 
or  slave,  "were  no  part  of  the  body  politic;''  and  at  no  time 
had  she  treated  them  as  citizens  either  of  her  own  State  or  of 
the  United  States. 

This  position  of  the  general  assembly  of  the  State  of  Ohio, 
was  not  only  the  most  pronounced  form  of  nullification :  it 
was  a  declaration  by  the  State  of  her  right  to  secede.  In  direct 
disregard  of  her  own  bitter  anti-negro  laws,  this  declaration 
was  one  of  the  strongest  moral  supports  for  the  nullification 


OF    THE    DRED    SCOTT    DECISION  IQI 

of  the  fugitive  slave  law  that  had  for  years  made  Ohio  the 
hotbed  of  fugitive-slave  abbettors  and  harborers  and  of  slave 
thieves.  The  distinguishing  difference  between  the  American 
government  and  that  of  any  other  country  in  the  world  lies  in 
the  fact  that  it  is  based  upon  a  written  Constitution;  and  in 
the  no  less  important  truth  that  where  there  is  a  question  as 
to  the  meaning  of  the  instrument  or  of  any  law  passed  by 
Congress,  the  Supreme  Court  is  the  final  determinant  of  that 
meaning  and  of  the  force  and  effect  of  that  law.  Except  by  an 
exercise  of  tyranny;  the  Supreme  Court  of  the  United  States 
cannot  violate  the  Constitution.  Its  interpretation  of  that 
instrument  become  the  Constitution  and  is  final.  But  final  only 
in  the  sense  that  it  is  the  supreme  law  of  the  land  until  amended 
by  a  vote  of  two-thirds  of  the  States.  Where  the  matter  is 
of  sufficient  importance  to  demand  it,  the  people  always  have 
a  remedy  against  the  effect  of  a  decision  by  our  Supreme 
Court  by  amending  the  Constitution.  If  enough  States  to  affect 
an  amendment  do  not  agree  therein,  a  dissenting  minority 
has  no  escape  from  submission  except  through  revolution,— 
and  this  inalienable  right  of  revolution  the  Southern  people 
believed  to  have  been  written  in  their  ratification  of  the  Con 
stitution,  and  the  synonym  of  the  right  of  secession.  Plainly 
there  were  not  a  sufficient  number  of  States  agreed  to  amend 
the  Constitution  so  as  to  escape  the  force  and  the  power  of  the 
Dred  Scott  decision;  therefore  to  teach  that  that  decision  was 
"repugnant  to  the  plain  provisions  of  the  Constitution,  and 
subversive  of  the  rights  of  freeman  and  free  States,"  was  to 
teach  nullification.  If  the  Northern  States  had  a  right  to 
teach  and  practice  nullification,  no  matter  for  what  cause, 
the  Southern  States  cannot  be  denied  the  equal  right  to  declare 
and  to  treat  that  nullification  as  a  destruction  of  the  obligation 
of  Southern  allegiance.  There  can  be  no  allegiance  to  that 
which  has  been  materially  altered  without  consent  of  the  con 
stitutional  power.  That  power  under  the  American  Govern 
ment  lies  in  the  action  of  two-thirds  of  the  States.  That 
must  be  taken  as  right  which  has  been  created  by  that  Con- 


I92  LEGAL  AND  HISTORICAL  STATUS 

stitutional  power  and  which  continues  to  have  its  assent.  Too, 
the  student  must  not  forget,  that  right  in  any  period  of  the 
past  and  under  environments  known  to  him  only  through  the 
medium  of  history  cannot  justly  be  measured  by  the  standard 
of  a  later  and  more  enlightened  day. 

Again  in  another  resolution  passed  by  the  general  assem 
bly  of  Ohio,  she  declared : 

'That  the  general  assembly,  in  behalf  of  the  people  of 
Ohio,  hereby  solemnly  protest  against  these  doctrines  [of  the 
Dred  Scott  decision],  as  destructive  of  personal  liberty,  of 
State's  rights,  of  Constitutional  obligations,  and  of  the  Union; 
and,  so  protesting,  further  declare  it  unalterable  convictions 
that  in  the  -Declaration  of  Independence  the  fathers  of  the 
Republic  intended  to  assert  the  indestructible  and  equal  rights 
of  all  men,  without  any  exception  or  reservation  whatsoever, 
to  life,  liberty,  and  the  pursuit  of  happiness."'" 

How  differently  that  resolution  reads  when  translated  in 
the  light  of  the  Ohio  anti-negro  laws. 

In  November,  1857,  the  legislature  of  Vermont  declared: 

"No.  70.  Resolutions  on  the  opinions  of  the  United 
States  Supreme  Court  in  the  case  of  Dred  Scott. 

"Resolved,  by  the  Senate  and  House  of  Representatives, 
That  the  Supreme  Court  of  the  United  States,  being  the  high 
est  judicial  tribunal  in  the  Republic,  ought  to  be  conspicuous 
for  its  wisdom,  learning  and  dignity;  that  the  protection  of  the 
interest  and  the  individual  rights  of  the  subject  ought  to  be 
its  especial  care;  that  any  departure  by  any  member  of  that 
court  from  established  rules  of  judicial  propriety  is  calculated 
to  degrade  the  tribunal  and  lessen  the  respect  with  which  its 
opinions  ought  to  be  received ;  that  whenever  any  such  member 
seeks  to  convert  that  court  into  a  political  institution,  to  make 
it  an  instrument  to  carry  into  effect  the  designs  of  a  political 
party,  such  conduct  ought  to  meet  the  emphatic  and  decided 
reprobation  of  the  people. 

"Resolved,   That   the   opinions   and  views   expressed   by 


3  Acts  of  general  assembly,   1857,  301. 


OF    THE    DRED    SCOTT    DECISION 

several  members  of  that  court,  comprising  the  its  majority, 
upon  questions  not  contained  in  the  record  in  the  Dred  Scott 
Case,  are  extra  judicial  and  political,  possessing  no  color  of 
authority  or  binding  force,  and  that  such  views  and  opinions 
are  wholly  repudiated  by  the  people  of  Vermont. 

"Resolved,  That  Vermont  re-asserts  the  Constitutional 
right  of  Congress  to  regulate  slavery  in  the  Territories  of  the 
Union,  by  legislative  enactments ;  that  such  right  is  clearly 
conferred  by  the  Constitution  itself,  and  its  timely  exercise  is 
indispensable  to  the  safety  and  perpetuity  of  the  Union." 

At  her  next  session  of  the  legislature  Vermont  manifested 
even  stronger  determination  tojrebel  and  openly  to  resist  the 
United  States  Government.  There  could  be  no  doubt,  no  law 
yer  of  authority,  and  no  judicial  body,  had  ever  or  has  ever 
questioned  that  the  Constitution  recognized  and  protected  the 
property  rights  existing  in  a  fugitive  slave.  Our  govern 
ment,  executive, ,  legislative,  and  judicial,  in  all  its  depart 
ments,  and  from  the  earliest  times  down  to  the  war  between  the 
States,  recognized  and  enforced  the  property  rights  in  negro 
slaves  as  the  several  laws  of  the  various  slave  States  denned 
those  rights.'  From  the  time  the  administration  of  John  Quin- 
cy  Adams  secured,  in  1827  the  payment  by  England  of  one 
million  two  hundred  and  four  thousand  nine  hundred  and 
sixty  dollars  for  slaves  demanded  as  property  in  our  treaty 
of  peace  with  that  country  in  conclusion  of  the  war  of  1812, 
which  slaves  had  been  declared  property  by  Alexander,  Em 
peror  of  Russia,  who  arbitrated  the  dispute  between  this 
country  and  England,4  on  down  to  the  case  of  the  Comet  in 
1830,  the  Ecomium  in  1834,  the  Enterprise  in  1835,  the  claim 
of  the  \Yiggs'  heirs  before  Congress  in  1853,  and  again  in 
1860,  to  April  1862  when  the  Northern  Republicans  then  in 
Congress  emancipated  the  slave  property  in  the  District  of 
Columbia  by  paying  the  property  value  of  one  million  dollars, 
the  most  indubitable  evidence  has  been  given  that  the  govern 
ment  of  the  United  States,  that  the  Constitution  of  the  United 


4  Am.    St.    Papers:    Foreign   Relation,   v.    i,    190;    Adams'   Wks.,    vols.    3,    336,    10, 
632;  Am.  St.  Papers;  v.  3,  750,  v.  4,   106,  363,  402;  645. 


LEGAL  AND  HISTORICAL  STATUS 

States,  did  recognize  "the  right  of  property  in  man.'  But  in 
October,  1858,  Vermont  coupled  the  constitutional  fugitive 
slave  laws  with  the  Dred  Scott  decision,  and  in  the  following 
words  announced  her  right  as  a  State  to  decide  for  herself 
u'lien  there  had  been  an  Infraction  of  flic  governmental  com 
pact,  and  actually  pronounced  the  Federal  laws  unconstitution 
al.  Her  legislature  said : 

"Resolved,  That  property  in  slaves  exists  only  by  the 
positive  law  of  force  in  the  States  creating  it.  The  moment  it 
passes  from  under  the  operation  of  those  laws,  it  is  property 
no  longer. 

"Resolved,  further,  by  the  Senate  and  House  of  Repre 
sentatives,  That  the  doctrine  maintained  by  a  majority  of  the 
judges  of  the  Supreme  Court  are  a  dangerous  usurpation  of 
power,  and  have  no  binding  authority  upon  Vermont,  or  the 
people  of  the  United  States." 

Put  that  side  by  side  with  the  nullification  of  South  Caro 
lina  back  in  1832,  place  with  it  the  disloyalty  of  Ohio,  and 
the  Southern  manifesto  becomes  innocent  and  harmless.  Yet 
there  are  those  who  tell  us  that  the  Northern  States  aban 
doned  the  doctrine  that  a  State  might  pronounce  the  laws  of 
the  United  States  Government  void,  shortly  after  the  New 
England  confederacy  in  1804,  and  most  surely  soon  after  the 
resolutions  of  the  Hartford  Convention  when  New  England 
refused  to  support  the  government  in  the  war  of  1812!  Yet 
Vermont  proceeded  to  declare  further : 

"Resolved,  That  whenever  the  government  or  the  judic 
iary  of  the  United  States  refuses  or  neglects  to  protect  the 
citizens  of  each  State  in  their  lives  or  liberty,  when  in  an 
other  State  or  Territory,  it  becomes  the  duty  of  the  sovereign 
and  independent  States  of  this  Union  to  protect  their  own  citi 
zens  at  whatever  cost."5 

For  the  same  reason,  because  the  Northern  States  had 
so  infected  the  Federal  Government  for  many  years  as  that  it 
would  not  protect  their  citizens  in  their  lives  and  liberty  of 


5  Resolves   of  the   Gen.    As&'embly   of    Vt.,   Oct.,    1858,  pp.    67   and   68. 


OF    THE    DRED    SCOTT    DECISION  IQ5 

movement  with  constitutional  and  legal  property,  the  Southern 
sovereign  and  independent  States  of  the  Union  found  it  their 
duty  ''to  protect  their  own  citizens  at  whatever  cost."  Had 
Ohio,  Vermont,  Maine  and  New  York  as  States  been  as  honest 
with  the  South  as  they  were  quick  to  act  upon  the  same 
grounds  in  their  own  interests,  the  cost  of  secession  would  not 
have  been  the  devastating  war  which  the  North  waged. 

In  April,  1857,  a  committee  reporting  to  the  legislature 
of  Maine  said :  "The  late  decision  of  the  Supreme  Court  of 
the  United  States,  in  the  case  of  Dred  Scott,  considered  in 
connection  with  the  president's  message,  certainly  looks  omi 
nous  for  the  cause  of  freedom  [sic],  not  only  in  Kansas,  but 
everywhere  in  the  United  States.  By  this  decision,  no  per 
son  of  the  African  race,  although  he  may  have  a  skin  as  white, 
an  intellect  as  towering  and  character  as  pure  and  noble  as 
any  judge  upon  the  bench,  can  be  a  citizen  of  the  United 
States,  under  the  Constitution.  .  .  . 

"In  1857,  in  the  case  of  Dred  Scott,  the  high  tribunal  of 
the  United  States,  the  boasted  land  of  the  free  and  the  home 
of  the  brave,  utters  the  mandate^  let  the  negro  with  his  wife 
and  children  be  doomed  to  returnless  bondage." 

Then  the  legislature  resolved : 

"Whereas,  The  Supreme  Court,  in  the  recent  case  of 
Dred  Scott,  .  .  .  has  undertaken  to  pronounce  an  extra-ju 
dicial  opinion.  .  .  . 

"Resolved,  That  the  extra-judicial  opinion  of  the  Su 
preme  Court  of  the  United  States,  in  the  case  of  Dred  Scott, 
is  not  binding,  in  law  or  in  conscience,  upon  the  government 
or  citizens  of  the  United  States,  and  that  it  is  of  an  import 
so  alarming  and  dangerous,  as  to  demand  the  instant  and 
emphatic  reprobation  of  the  country. 

"Resolved,  That  the  independent  right  of  each  State  to 
determine  who  shall  be  admitted  to  political  franchise  and  citi 
zenship  within  its  own  limits,  is  clear  and  indisputable,  and 
is  to  be  exercised  without  question  by  any  other  State,  and 
that  persons  admitted  to  the  rights  of  citizenship  by  any  State, 


IQ  LEGAL  AND  HISTORICAL  STATUS 

are,  by  the  plain  letter  of  the  Constitution  of  the  United 
States,  'entitled  to  all  privileges  and  immunities  in  the  sev 
eral  States/  .  .  . 

"Resolved,  That  Maine  will  not  allow  slavery  within 
its  borders,  in  any  form  under  any  pretense,  for  any  time,  how 
ever  short,  let  the  consequences,  be  what  they  may."6 

No  stranger  statement  of  the  right  of  secession  could  have 
been  penned. 

There  was  a  large  backing  in  the  New  York  legislature 
for  the  following  resolutions : 

"Resolved,  That  the  Supreme  Court  of  the  United  States 
by  reason  of  a  majority  of  the  judges  thereof  having  identi 
fied  it  with  a  sectarian  and  aggressive  party,  has  lost  the 
confidence  and  respect  of  the  people  of  this  State."7 

Mr.  Little,  speaker  of  the  assembly  of  that  State,  on  the 
floor  in  referring  to  the  court's  decision  that  the  Missouri 
Compromise  was  unconstitutional,  said :  "If  this  be  law  I 
place  my  foot  upon  the  Constitution  of  the  United  States.'''' 

Representative  Northern  States  were  not  alone,  acting 
as  States,  in  this  position  of  open  nullification  and  pronounced 
disloyalty.  The  great  Republican  party,  the  party  of  the 
North  and  of  the  then  West,  took  the  position  that  neither 
the  President  nor  the  Congress  of  the  United  States  was 
bound  by  the  Dred  Scott  decision.  Said  Mr.  Lincoln :  ".  .  . 
we  nevertheless  do  oppose  that  decision  as  a  political  rule, 
.  .  .  which  shall  be  binding  on  the  members  of  Congress  or 
the  President  to  favor  no  measure  that  does  not  actually  con 
cur  with  the  principles  of  that  decision."9 

The  error  fo  which  this  position  would  lead  us  was  un 
flinchingly  exposed  by  Mr.  Justice  Curtis,  the  same  judge  who 
dissented  in  the  case  now  under  consideration;  but  the  truth 
was  announced  too  late  to  have  any  weight  in  averting  the  war 
which  had  already  gathered  for  its  deadly  work.  When  ex- 


8  Resolutions  of  Maine,   1857,  p.   61,   ch.    112. 

7  Washington    Union,    May    5,    1857. 

8  Providence   (R.   I.)   Post,   May  2,   1857. 
8  Bell's  Lincoln,  128. 


OF    THE    DRED    SCOTT    DECISION  IQ7 

posing  the  illegality  of  Mr.  Lincoln's  so-called  emancipation 
proclamation,  Judge  Curtis  said :  "If  it  be  true  that  the  judic 
iary  was  created  to  act  upon  the  constitutional  validity  of 
laws,  when  they  affect  the  rights  of  the  citizen,  it  must,  a 
fortori,  be  true  that  its  decisions  that  an  executive  act  which 
affects  a  citizen  is  unconstitutional,  is  binding  upon  the  Presi 
dent  ;  otherwise,  the  President  is  sole  judge  of  the  extent 
of  his  powers,  and  if  he  will  not  submit  to  judicial  decision, 
there  is  no  limit  to  the  powers  which  he  may  practically  exer 
cise." 

The  principle  is  quite  as  applicable  to  the  legislative  arm 
of  the  government.  If  Congress  and  the  President  may  per 
sist  in  passing  laws  known  to  be  in  opposition  to  the  decision 
of  the  Supreme  Court,  then  there  can  be  no  settled  rule  of 
legislation,  and  Congress  and  the  President  can  so  encumber 
the  Supreme  Court  as  entirely  to  destroy  its  functions, — and 
to  render  useless  any  arm  of  the  government  is  to  destroy  the 
government  to  which  the  States,  or  any  considerable  portion 
of  the  people  whether  considered  by  the  geographical  limits 
of  States  or  otherwise,  owe  allegiance. 

In  defending  President  Johnson  on  his  trial  of  impeach 
ment  before  the  Senate  of  the  United  States,  Judge  Curtis, 
of  counsel  for  the  President,  said :  "Do  not  let  me  be  misun 
derstood  on  this  subject.  I  am  not  intending  to  advance  upon 
or  occupy  any  extreme  ground,  because  no  such  ground  has 
been  advanced  upon  or  occupied  by  the  President  of  the  United 
States.  He  is  to  take  care  that  the  laws  are  faithfully  ex 
ecuted.  AYhen  a  law  has  been  passed  through  the  forms  of 
legislation,  either  with  his  assent  or  without  his  assent,  it  is 
his  duty  to  see  that  that  law  is  faithfully  executed  so  long  as 
nothing  is  required  of  him  but  ministerial  action.  He  is  not 
to  erect  himself  into  a  judicial  court,  and  decide  that  the  law 
is  unconstitutional,  and  that  therefore  he  will  not  execute  it; 
for,  if  that  were  done,  manifestly  there  could  be  no  judicial 
decision."10 


10  Life   and   Works    of   B.    R.    Curtis,   v.    2,    364. 


198  LEGAL  AND  HISTORICAL  STATUS 

Hence,  manifestly  there  could  be  no  judicial  decision  if 
the  doctrine  advanced  by  the  Republican  party  and  the  North 
ern  States,  in  their  effort  to  nullify  the  Dred  Scott  decision, 
was  to  prevail.  That  the  result  of  the  contention  went  to 
the  most  serious  hurt  of  the  South,  no  honest  historian  will 
deny. 

In  April,  1857,  tne  negro  proprietor  of  the  Worcester 
(Mass.)  Gymnasium,  having  failed  on  account  of  his  color  to 
get  a  residence,  advertised  for  one.  Commenting  on  this  April 
28th,  the  Providence  (R.  I.)  Post  says: 

"Worcester  ...  is  the  place  where  disunion  conventions 
are  held, 'and  disunion  is  preached  from  pulpit  to  rostrum,  and 
in  the  leading  papers  of  the  Republican  party — Dred  Scott 
decisions  are  defied  and  ridiculed  there.  Kansas  treason  is 
hatched  there.  The  ideal  negro  is  worshiped  there.  And  the 
higher  law,  which  knows  no  difference  in  color,  is  pretty  near 
ly  the  only  law  that  is  recognized.  But  even  in  this  city  of 
Worcester — this  headquarters  of  abolitionists — this  grand  cen 
ter  of  treason,  ...  a  respectable,  genteel  colored  man  .  .  . 
can't  get  a  tenement.'' 

Corroborative  evidence  of  this  charge  of  the  disunion 
position  of  these  Massachusetts  citizens  may,  for  one  instance 
of  many,  be  seen  in  The  Liberator,  March  27,  1857;  an(l 
another  in  the  Washington  Union  of  the  same  date. 

The  Rock  Island,  Illinois,  Argus,  of  the  Dred  Scott  de 
cision  said : 

"No  decision  for  a  generation  has  created  a  deeper  sensa 
tion  throughout  the  country."  Then  pointing  to  the  citizen's 
duty,  it  continued :  "Under  this  view  of  the  case  the  presump 
tion  and  insolence  of  no  inconsiderable  portion  of  the  partisan 
press  seem  almost  incredible.  Every  contemptible  sheet  which 
hisses  from  the  ruins  of  convert  treason  has  found  a  tongue, 
and,  true  to  its  first  great  type,  whispers  meritricious  sophisms 
in  the  ear  of  baser  ignorance  and  credulity.  .  .  .  This  inquisi 
tion,  blind  and  mad  as  it  is,  which  has  foisted  itself  into  the 
pulpit  and  the  forum,,  may  be  soon  expected  to  sit  with  veiled 
face,  in  mockery  of  common  sense  and  common  decency,  upon 


OF    THE    DRED    SCOTT    DECISION  199 

the  last  relic  of  constitutional  liberty.  A  blow  aimed  at  the 
third  great  branch  of  the  government,  the  judiciary,  is  tanta 
mount  to  a  blow  struck  at  the  heart  of  all  law  and  order."11 

In  a  splendid  editorial  entitled  "The  Supremacy  of  the 
Law,"  the  Washington  Union  of  May  I,  1857,  pointed  to  the 
only  proper  remedy  where  citizens  are  dissatisfied  with  laws 
or  constitutions,  and  then  indicated  the  character  and  wide  ex 
tent  of  the  attack  upon  the  judiciary  in  these  words: 

" Reverting  to  the  late  decision  of  the  Supreme  Court. 
.  .  .  How  has  it  been  received  in  those  [free-labor]  States? 
\Ye  shall  not  pollute  our  columns  with  the  monstrous  lies,  the 
exaggerated  misrepresentations,  the  false  constructions,  and 
unfounded  conclusions  to  which  it  has  given  birth;  much  less 
shall  we  copy  the  vulgar  ribaldry  which  has  been  poured  on 
the  heads  of  Chief  Justice  Taney  and  the  associate  justices 
who  coincided  with  him  in  the  Dred  Scott  decision.  .  .  . 

"Let  us  ask  ourselves  what  is  to  be  the  end  of  all  this? 
If  the  law  is  no  longer  of  any  force — if  the  Constitution  is 
a  nullity,  and  the  solemn  decisions  of  the  Supreme  Court  are 
to  be  set  aside  by  the  resolutions  of.  a  State  legislature — what 
becomes  of  this  government  of  laws?'' 

The  Springfield,  Illinois,  State  Register,  March  19,  1857, 
said  : 

"We  did  not  suppose  that  journals  that  had  not  openly 
hoisted  the  flag  of  disunion  would  so  far  forget  what  js  at 
least  due  to  public  decency  and  decorum  as  to  assert  that  the 
solemn  and  deliberate  judgment  of  the  highest  tribunal  in  our 
country  is  entitled  to  no  more  respect  and  moral  weight  than 
that  of  a  majority  of  those  congregated  in  a  Washington  bar 
room,  or  to  impugn  the  honesty  and  purity  of  the  great  con 
stitutional  lawyers  who  occupy  the  exalted  positions  of  su 
preme  and  final  judges  of  all  matters  relating  to  the  interpreta 
tion  of  the  Constitution  and  laws.'*12 

The  Boston  Atlas  declared  that  the  "names  of  the  judges 


11  Washington    Union,   April    16,    1857.      See  a   splendid   statement  of   the  erroneous 
position   of   ttte  opposition  in  this'  same  paper   for  April   20,    1857. 

12  See  the  Register  for  March   19  and  24,   1857. 


2OO  LEGAL  AND  HISTORICAL  STATUS 

will  go  down  with  that  of  Arnold,  the  traitor;"  and  the  Bos 
ton  Chronicle  solemnly  insisted  that  "a  majority  of  the  court 
are  great  scoundrels."13 

The  Eastern  Argus  of  Portland,  Maine,  quoted  this  from 
the  New  York  Tribune's  correspondent : 

"We  come  at  once  to  the  expression  of  a  firm  conviction, 
blunt  as  it  may  seem,  that  the  Union  is  not  worth  saving  nor 
this  government  worth  preserving  upon  the  basis  of  the  doc 
trine  of  President  Buchanan's  inaugural,  backed  by  the  coming 
Dred  Scott  decision  of  the  Supreme  Court."  Then  in  a  scath 
ing  rebuke  of  this  leading  Republican  organ  it  pressed  the 
question,  "Are  the  people  of  Maine  prepared  to  raise  the 
standard  of  revolt  against  the  Union?  What  in  the  name  of 
reason  have  they  suffered  that  they  should  come  to  the  con 
clusion  that  the  Union  is  not  worth  saving?"14 

March  14,  1857,  the  New  York  Herald  warned  the  North 
against  the  "treason  and  rebellion"  of  its  leading  Republi 
cans;  and  on  the  I5th  it  indicted  the  New  York  Tribune,  the 
Evening  Post,  the  Courier  and  Enquirer,  the  Albany  Evening 
Journal,  the  Boston  Atlas,  and  other  "prominent  Republican 
journals,"  and  pointed  to  the  evidence  that  they  were  "brim 
full  of  the  elements  of  sedition,  treason,  and  insurrection." 

Painfully  true  these  allegations  were,  as  will  appear  by 
inspecting  the  columns  of  the  indicated  journals.15 

The  parasite  of  Northern  rebellion  was  not  content  with 
the  politicians,  the  State  officials  and  State  legislatures,  it  bored 
deep  into  the  Northern  ministry  and  sapped  the  truth  from 
the  most  influential  of  many  New  England  religious  periodi 
cals.  The  Eastern  Argus  of  Portland,  Maine,  March  30, 
1857,  says: 

"We  have  never  been  disposed  to  believe  that  any  very 
considerable  portion  of  New  England  desires  a  dissolution 


13  New  York  Herald,   March    13,    1857;   Eastern  Argus,    March    16,    1857;    see  also 
splendid   articles    in    the    latter    for    March    i7th    and    24th. 

14  Argus,  March   14;  see  also  March  12. 

16  See  the  Tribune  for  April   i,  April   9,  and   18;    March    n  and   16,    1857. 


OF    THE    DRED    SCOTT    DECISION  2OI 

of  the  Union.  .  .  .  But  all  who  read  the  newspapers,  especially 
professedly  religious  papers,  cannot  fail  to  see  that  the  tenden 
cy  of  much  of  their  discussions  is  directly  and  immediately 
calculated  to  sow  seeds  of  revolution  and  disunion.  .  .  .  For 
instance,  there  is  the  New  York  'Independent,'  the  leading 
organ  of  the  Congregational  denomination.  It  is  said  to  have 
the  largest  circulation  of  any  of  its  contemporaries,  and  it 
claims  to  exert  a  wide  and  more  controlling  influence  over  New 
England  orthodoxy  than  any  other  publication.  ...  It  will 
readily  be  seen,  then,  that  a  paper  conducted  with  ability,  hav 
ing  an  immense  circulation,  and  lording  it  over  the  consciences 
of  men  with  the  authority  for  which  that  is  proverbial,  has  it 
within  its  power  to  do  immense  mischief.  .  .  .  That  it  does 
make  mistakes  and  that  too  of  a  heinous  character  is  easily 
shown.  Who  does  not  revolt  from  such  atrocious  sentiments 
as  these : 

'"We  affirm  that  Chief  Justice  Taney,  .from  his  high 
seat  of  power,  pronounces  that  to  be  law  which  in  his  inner 
most  soul  he  knows  not  to  be  law.  We  affirm  that,  deliberately, 
and  after  a  winter's  study,  he  alleges  as  historic  fact  that 
which  he  knows  to  be  not  fact.' 

"Here  is  a  charge  involving  the  Chief  Justice,  against 
whose  character  there  has  never  been  a  breath  of  suspicion, 
in  falsifying  his  honor,  and  committing  downright,  wilful  per 
jury.  .  .  .  Now  it  may  be  said  that  such  ebolutions  carry  their 
own  curse  with  them.  With  men  of  candor  and  independence 
it  is  so.  But  these  are  not  the  men  on  whom  the  mischief 
operates.  The  wrong  is  perpetuated  on  that  numerous  portion 
who  take  their  religious  paper  to  the  family  circle  for  Sunday 
reading;  men  who  .  .  .  treat  the  columns  of  a  professedly 
religious  periodical  nearly,  if  not  quite,  as  infallible  as  the 
pages  of  Holy  Writ.  .  .  . 

"There  was,  a  few  days  since,  an  article  in  the  leading 
organ  of  another  large  denomination  in  New  England,  the 
direct  tendency  of  which  was  to  give  countenance  to  disloyalty 
to  the  Union  and  the  Constitution.  .  .  .  We  quote  from  the 


2O2  LEGAL  AND  HISTORICAL  STATUS 

Boston  'Watchman  and  Reflector/  the  Baptist  organ.  In  com 
menting  on  the  decision  of  the  court  in  the  Dred  Scott  Case, 
among  other  things  it  says : 

"The  decision  is  a  sacrilege  against  which  the  blood  of 
our  fathers  cried  from  the  ground.  No  man  that  has  in  his 
veins  a  drop  kindred  to  the  blood  that  bought  our  liberties, 
can  submit  to  this  decree.  But  if  the  free  States  will  sit  down 
in  the  dust,  without  an  effort  to  vindicate  their  sovereign 
rights,  if  the  majority  of  the  people  are  so  fallen  away  from 
the  spirit  of  their  fathers,  as  to  yield  their  birth-right  without 
a  struggle,  then  it  becomes  the  solemn  duty  of  every  conscien 
tious  freeman  to  regard  the  Union  of  these  States  as  stripped 
henceforth  of  all  title  to  his  willnig  allegiance/'' 

Many  other  like  utterances  might  be  given  from  the 
columns  of  these  and  many  other  such  journals,  such  as  the 
declaration  by  the  Independent  that  the  Dred  Scott  decision 
was  "a  treasonable  attempt"  to  alter  the  law,1"  or  'that  of  a 
correspondent  in  the  Independent  of  April  12: 

"The  decision  of  the  Supreme  Court  against  God's  word 
and  the  Constitution  of  our  country  has  no  more  authority 
upon  any  of  us,  or  in  any  department,  than  the  command  of 
Satan  to  the  Lord  Jesus  to  fall  down  and  worship  him.  .  .  . 
And  it  is  just  the  most  abandoned  corruption  and  putridity  of 
national  selfishness  and  avarice,  the  very  faeces  of  moral  de 
pravity  on  the  dung  hill  of  the  world,  which  the  Chief  Justice 
applies  in  his  reasoning,  for  the  quickening  into  life  of  his 
moral  principles." 

June  27,  1857,  the  Detroit  (Mich.)  Free  Press  pointed 
to  the  persistent  misrepresentations  of  the  Dred  Scott  decision 
by  the  Northern  ministry,  indicated  that  the  error  must  be  wil 
ful,  and  said :  "Probably  most  of  them  never  will  read  the 
opinion,  and  nine  out  of  ten  will  persist  in  the  misrepresenta 
tions  they  have  indulged."17  The  Democratic  Standard,  Con- 


16  March  26th,   1857. 

17  See  Washington   City    Union,   June  4,    1857. 


OF    THE    DRED    SCOTT    DECISION  2C>3 

cord,  New  Hampshire,  July  4,  1857,  pointed  to  this  same 
condition. 

A  representative  of  one  of  the  most  radical  of  the  nulli 
fying  ministry  is  found  in  one  Rev.  Dr.  Cheever  who  preached 
to  large  audiences  in  New  York,  and  who  charged  that  the 
Supreme  Court  had  "boldly,  unblushingly,  Satanically"  as 
serted  that  the  negro  was  to  be  defrauded  of  his  rights.  He 
called  upon  all  classes  at  the  North  to  resist,  and  asserted  that 
the  free-labor  States  should  and  could  nullify  the  decision. 
One  of  his  sermons  in  full  may  be  seen  in  the  New  York 
Independent  for  April  9,  1857.  The  New  York  Tribune  says 
that  he  was  listened  to  by  large  and  respectable  audiences,  and 
that  lie  and  those  preachers  like  him  gave  expression  to  a 
public  feeling  so  strong  that  it  could  no  longer  be  kept  under.18 

The  annual  conference  of  the  Methodist  Episcopal 
Church,  held  in  Bristol,  Rhode  Island,  April,  1857,  appointed 
a  committee  on  slavery  which  reported: 

"The  late  decision  of  the  Supreme  Court,  which  national 
izes  slavery  and  reverses  previous  decisions  in  favor  of  free 
dom  as  the  national  birth-right  of  all  the  inhabitants  of  our 
loved  country,  has  overwhelmed  us  with  surprise  and  gnief, 
and  affords  additional  assurance  that  the  decisive  battle  of  free 
dom  is  yet  to  be  fought."19 

Negroes  of  Boston  remonstrated  against  the  decision, 
filing  their  prayers  for  nullification  before  the  legislature  of 
Massachusetts.  Governor  John  A.  Andrew,  then  a  member 
of  that  body,  presented  the  remonstrance  and  made  it  the 
occasion  to  deliver  a  lengthy  address  in  which  he  purported 
to  analyze  the  decision,  insisting  that  in  fact  the  court  had 
really  decided  nothing!  In  the  course  of  this  speech  of  abuse 
and  misrepresentation,  he  says :  "I  quarrel  with  the  opinion 
as  pronounced  by  the  Chief  Justice  because  of  its  injustice  to 
the  colored  race ;  because  of  its  calumny  upon  the  memory 
of  the  fathers  of  the  Republic,  and  of  its  unendurable  immor- 


18  See  the   Tribune  for   April   10,   1857. 

19  The    Providence    Post,    May    6    and    16,     1857,    and    the    Boston    Transcript    for 
May. 


2O4  LEGAL  AND  HISTORICAL  STATUS 

ality.  I  denounce  it  as  unjust  to  the  colored  man.  .  .  .  The 
opinion  declares  .  .  .  that  the  negro,  'having  no  rights  which  the 
white  man  was  bound  to  respect,'  was,  by  the  necessity  of  his 
nature,  excluded  from  the  privileges  of  citizenship.  .  .  .  This 
war,  made  by  the  court  for  political  purposes,  by  Presidents 
and  by  cabinets,  upon  colored  men,  is  no  war  declared  against 
race.  It  is  not  a  war  against  color,  nor  a  demonstration  in 
the  interests  of  white  men.  It  is  a  war  against  freedom.  It 
is  a  demonstration  in  behalf  of  human  servitude.  It  is  an  op 
eration  commenced  in  the  interests  of  slavery,  as  a  political 
poivcr,  an  anomalous  political  power  in  this  Republic;  and  as 
such  it  becomes  the  American  people  to  meet  it,  to  denounce 
it,  to  overthrow  it,  if  possible,  at  the  threshold."20 

Why  inveigh  to  the  legislature  of  Massachusetts?  Un 
derneath  the  movement  is  the  most  emphatic  a  vowel  of  the 
doctrine  that  a  State  might  nullify  and  render  inoperative  the 
acts  and  laws  of  the  Federal  Government.  Andrew  was  to 
Massachusetts  in  influence  what  Hayne  or  Calhoun  was  to 
South  Carolina.  His  denunciation  of  the  legal  nature  and  the 
binding  force  of  the  decision  had  immense  influence  and  found 
extensive  response.  The  method  by  which  it  was  proposed  to 
overthrow  the  decision  of  the  court  was  patent  in  every  move 
of  the  Northern  nullificationists.  For  instance :  Massachusetts 
removed  from  the  probate  office  Judge  Loring  because  as 
United  States  commissioner  he  enforced  the  Federal  fugitive- 
slave  law  in  a  case  where  it  was  unquestionably  applicable 
and  his  undoubted  official  duty.  Andrew  stood  squarely  be 
hind  this  State  nullification  of  the  Federal  Government.  Com 
menting  upon  this  action  of  the  State  and  its  legislative  approv 
al  by  Andrew  and  his  party,  The  Liberator  said :  "This,  then, 
is  the  work  to  be  accomplished — to  make  the  soil  of  Massachu 
setts  as  free  as  that  of  Canada  or  Great  Britain  to  every  fugi 
tive  slave,  'Constitution  or  no  Constitution,  Union  or  no 
Union.'  We  will  do  it!"  (Ib.)  January  29,  1858,  Theodore 


20  See  speech  in  full  in  The  Liberator,  March  26,  1858.  April  7  and  21,  1892,  the 
New  York  Nation,  commended  Andrew's  analysis,  failing  to  see  its  misrepresentations' 
and  virtually  commending  its  nullification. 


OF    THE    DRED    SCOTT    DECISION  "         205 

Parker  in  an  address  to  a  large  Massachusetts  audience  said : 
"The  whole  policy  of  the  Republican  party  must  be  changed. 
We  must  attack  slavery — slavery  in  the  Territories,  slavery 
in  the  District,  and  above  all,  slavery  in  the  slave  States."  It 
was  the  doctrine  advocated  by  S.  P.  Chase  in  1847,  it  was 
Northern  nullification  grown  bolder  and  much  stronger.  Said 
Chase :  "If  the  courts  will  not  overthrow  it  [the  Democratic 
doctrine  of  the  Constitution],  the  people  will,  even  if  it  be 
necessary  to  overthrow  the  courts."21  It  was  the  same  doc 
trine  and  the  same  defiance  which  Sedgwick,  of  New  York, 
hurled  at  the  South  from  the  halls  of  Congress  on  March 
26,  1860,  when  he  said:  "If  must  have  been  expected  .  .  . 
that  personal  liberty  bills  would  be  passed,  as  they  have  been — • 
though  not  half  as  stringent  as  they  ought  to  be — to  dis 
charge  the  duty  which  every  independent  State  owes  to  each 
of  its  citizens,  however  humble — I  mean  protection  to  their 
personal  liberty."' 

Thus  throughout  the  North  the  States,  the  courts,2'  the  leg 
islatures,  leaders  of  public  sentiment,  the  bar,  the  press,  the 
pulpit,  the  Republican  party,  the  masses  ol  the  people  follow 
ing,  taught  and  enforced  the  right  of  a  State  to  nullify  the 
laws  of  the  Federal  Government.  Let  the  excuse  be  what  it 
may,  as  a  doctrine  it  was  as  absolutely  unjustifiable  and  as 
much  rebellion  as  any  which  the  human  mind  can  conceive. 
The  machinery  of  the  government  being  in  the  hands  of  the 
nullificationists  the  injured  section  was  powerless,  and  the 
most  complete  subversion  of  material  Federal  powers  followed. 


21  Worden,   Life  of   S.    P.    Chase,   315. 

22  App'dx   Cong.    Globe,    36    Cong,    ist    session,    179.     See   also   speech   of  Thos.    B. 
Florence   of  Pennsylvania   delivered  in  the  House  April    12,   1860,  indicating  the  exten 
sive   nullification   of  the   Dred    Scott   decision. 

23  An   instance   is    given    in    The    Liberator,    March    19,    1858. 


XII. 
NULLIFICATION   IN   THE  SOUTH. 

The  extensive  Northern  nullification  of  the  Dred  Scott 
decision,  was  one  of  the  grounds  of  subsequent  action 
by  the  South.  To  determine  the  value  of  this  concrete  instance 
upon  which  the  South  to  an  extent  stands  for  an  excuse  and 
justification,  it  is  necessary  to  have  a  correct  view  of  the  rela 
tion  of  the  South  to  the  doctrine. 

Nullification,  the  act  of  invalidating  or  making  void, 
in  American  politics  or  questions  of  government,  is  that  doc 
trine  which  asserts  the  right  of  any  State  to  declare  the  un- 
constitutionality  of  any  United  States  law,  though  enacted 
in  the  prescribed  manner  and  held  to  be  constitutional  by  the 
Supreme  Court  of  the  United  States,  the  State  remaining  the 
while  unrevolted  or  unseceded.  This  definition  is  equally 
applicable  to  any  party,  section,  or  part  of  the  people.  The 
concensus  of  American  scholarship  is  that  this  theory  is  wrong 
and  entirely  without  foundation  in  our  system  of  government. 
Unchecked,  its  practice  by  any  number  of  the  States,  by  any 
section  of  the  Union,  or  by  any  part  of  the  people,  would  sub 
vert  and  destroy  the  American  government ;  in  the  words  of 
Webster  in  1832:  "It  is  disunion  by  force,  it  is  secession  by 
force  :  it  is  civil  war."1 

In  histories  of  American  government  and  politics  nulli 
fication  is  asscribed  almost  exclusively  to  the  South,  and  John 
C.  Calhoun  and  his  friends  in  South  Carolina  in  their  con 
troversy  with  the  Federal  Government  in  1828-1833,  over 
the  tariff,  are  regarded  as  chief  exponents.  Only  the  merest 


1  Writings  and  Speeches,  vol.    13,  41. 

206 


OF    THE    DRED    SCOTT    DECISION  2O/ 

outline  of  the  history  of  this  doctrine  in  the  South  can  here 
be  given,  but  it  will  suggest  that  broader  view  which  must 
attain  before  the  true  relation  of  the  doctrine  to  our  history 
can  be  seen.  When  this  readjustment  of  our  historic  perspect 
ive  shall  have  been  made,  the  nullification  of  the  Dred  Scott 
decision  will  stand  much  nearer  to  the  foreground  and  in 
outlines  bold;  and  it  will  appear  that  the  secession  of  the 
South  certainly  was  not  the  climax  of  her  faith  in  and  practice 
of  that  contention. 

To  the  Virginia  and  Kentucky  resolutions  of  1798  and 
1799  is  sometimes  attributed  the  origin  of  nullification.2  These 
famous  resolutions  were  provoked  by  the  alien  and  sedition 
laws  passed  by  Congress  shortly  before.  The  alien  law  gave 
the  President  arbitrary  power  to  expel  from  the  United  States 
any  alien  he  might  regard  as  dangerous  to  the  peace  and  safety 
of  the  country.  The  sedition  law  made  the  printing,  writing, 
or  publishing  of  anything  false,  scandalous,  or  malicious 
against  the  President,  Congress,  or  the  government,  or  the 
doing  of  anything  to  bring  either  into  disrepute  or  contempt 
on  the  part  of  the  people,  an  offence  punishable  by  fine  and 
imprisonment.  These  acts  of  legislation  were  the  peculiar 
work  of  the  Federalists  in  Congress,  who  sought  to  gather 
arbitrary  powers  to  the  Federal  Government.  Timothy  Pick 
ering  of  Massachusetts,  as  an  instance  of  the  spirit  of  the 
Northern  Federalist,  expressed  regret  that  these  laws  were 
not  more  radical  and  far-reaching.  Amos  Fisher  led  the 
general  opposition  on  the  part  of  the  Federalists  to  John 
Marshall,  proposed  for  Chief  Justice  of  the  Supreme  Court 
of  the  United  States,  on  the  ground  that  Marshall  disapproved 
of  these  laws.3  There  was  no  popular  demands  for  the  laws, 
and  it  was  clearly  the  purpose  of  the  Northern  Federalist 
to  place  the  States  at  the  mercy  of  the  Federal  Government.4 
These  laws  excited  alarm  in  every  section  of  the  Union.  The 


2  i    Von    Hoist,    Const.    Hist.    U.    S.    142;    Powell,    Nullification   and    Secession,    63 
and  many  others. 

3  Gaillard    Hunt,    The    Life    of    Madison,    (1902)    250;    4    Elliot's    Debates',    441;    i 
Statutes  at   Large,  570,   596. 

4  See    Thomas    E.    Watson,    Life   and    Times   of   Jefferson,    362. 


2O8  LEGAL  AND  HISTORICAL  STATUS 

people  were  brought  again  to  inquire  for  rights  and  remedies 
just  as  shortly  before  the  colonists  had  been  forced  to  do. 
Plainly,  the  alien  and  sedition  laws  were  unconstitutional ;  they 
were  despotic.  Out  of  this  situation  sprang  the  Virginia  and 
Kentucky  resolutions. 

The  legislature  of  Kentucky  passed  its  resolution  in  No 
vember,  1798.  The  following  embodies  the  doctrine  set  forth  : 
"That  the  several  States  composing  the  United  States  of 
America  are  not  united  on  the  principle  of  unlimited  sub 
mission  to  their  general  government;  .  .  .  and  that  whenever 
the  general  government  assumes  undelegated  powers,  its  acts 
are  unconstitutional,  void,  and  of  no  force,  .  .  .  that  this 
government  was  not  made  the  final  or  exclusive  judge  of  the 
extent  of  the  powers  delegated  to  itself,  since  that  would  have 
made  its  discretion,  and  not  the  Constitution,  the  measure 
of  its  powers ;  but  that  as  in  all  other  cases  of  compact  among 
parties  having  no  common  judge,  each  party  has  an  equal  right 
to  judge  for  itself,  as  well  of  infractions  as  of  the  mode  and 
measure  of  redress."5 

This  resolution  was  an  address  to  the  other  States  and 
was  meant  primarily  as  a  protest  against  the  action  of  the 
Federal  Government.  It  does  no  more  than  assert  that  correct 
ive  power  remains  with  the  States  and  is  preserved  by  the 
Constitution ;  and  that,  should  the  corrective  power  when 
exercised  fail  of  the  desired  relief,  there  remained  the  right 
of  revolution, — a  right  denied  by  no  one.  This  resolution  de 
clares  that  the  State  will  not  submit  "to  undelegated  and  con 
sequently  unlimited  powers  in  no  man  or  body  of  men,"  but  it 
does  not  say  that  the  remedy  lay  in  the  nullification  of  the  ob 
jectionable  laws  by  the  action  of  a  single  State.  However,  it 
does  specifically  declare  "that,  although  this  Commonwealth, 
as  party  to  the  Federal  compact,  will  bow  to  the  laws  of  the 
Union,  yet  it  does,  at  the  same  time,  declare  that  it  will  not  now 
or  hereafter  cease  to  oppose  in  a  constitutional  manner  every 
attempt,  at  what  quarter  soever  offered,  to  violate  that  com- 


5  See  Warfield,   The  Kentucky   Resolution  of   1798;   4   Elliot,   540;    Smith's   History 
of   Kentucky,   346,    where   the   resolutions   are   given    in    full. 


OF    THE    DRED    SCOTT    DECISION  200, 

pact."'J  The  doctrine  of  State  nullification  in  the  objection 
able  sense  of  that  v;ord  has  been  imputed  to  the  resolution  and 
to  the  State  because  the  resolution  declared  that  "a  nullifica 
tion  by  those  sovereignties  [the  States],  of  all  unconstitutional 
acts  done  under  color  of  that  instrument  is  the  rightful  reme 
dy."  But  these  words  taken  in  connection  with  the  entire 
resolution  show  clearly  that  there  was  no  intimation  that  the 
nullification  was  to  be  accomplished  by  other  than  the  three- 
fourths  power  of  the  States.  In  an  unobjectionable  sense  the 
States  have  the  power  to  nullify  any  act  or  to  destroy  any 
power  of  the  Federal  Government,  under  that  clause  of  the 
Constitution  which  has  reserved  to  the  States  the  right  and 
power  to  amend  or  alter  the  Constitution.  As  Shaler  has  said, 
this  resolution,  as  is  shown  by  previous  and  subsequent  his 
tory  of  the  State,  was  not  entered  as  the  basis  of  any  con 
templated  action.  "It  would  be  a  distortion  of  history  to  look 
upon  this  action  as  though  it  had  been  taken  in  i86o;"7  or  to 
give  the  word  nullification  the  meaning  not  in  the  mind  of  the 
Kentuckians,  and  which  the  word  came  to  have  at  a  later  day. 
The  Virginia  resolution  was  passed  by  the  legislature 
in  December,  1798.  It  was  formulated  by  James  Madison, 
whose  loyalty  to  the  Federal  Government  has  never  been 
questioned.  His  understanding  of  the  Constitution  and  his 
grasp  upon  the  fundamentals  of  the  government  were  in 
ferior  to  none.  The  doctrine  advocated  by  this  resolution 
was  that  the  Federal  Government  was  bound  by  the  "plain 
sense  and  intention"  of  the  Constitution  and  that  its  acts  are 
"no  further  valid  than  they  are  authorized  by  the  grants 
enumerated"  in  that  instrument;  "and  that,  in  case  of  a  de 
liberate,  palpable,  and  dangerous  exercise  of  other  powers, 
not  granted  by  the  said  compact,  the  States  who  are  parties 
thereto*  have  the  right,  and  are  in  duty  bound,  to  interpose, 
for  arresting  the  progress  of  the  evil,  and  for  maintaining  with 
in  their  respective  limits  the  authorities,  rights,  and  -liberties 
appertaining  to  them." 


"  4   Elliot,    545- 

~  See  Shaler,  History  of   Kentucky;    Smith,  History  of   Kentucky,  356. 


2IO  LEGAL  AND  HISTORICAL  STATUS 

As  was  natural  this  resolution  was  bitterly  assailed  by 
the  Federalists  and  distorted  into  a  doctrine  its  language  does 
not  warrant  and  which  those  who  passed  it  did  not  entertain. 
So  it  was  that  at  the  next  session  of  the  legislature,  1799- 
1800,  Madison  made  that  analytical  report  showing  that  the 
doctrine  advocated  was  that  recognized  and  preserved  in  the 
Constitution.  It  was  clearly  shown  that,  as  was  the  Kentucky 
resolution,  this  by  Virginia  was  no  more  than  a  protest  and  a 
reminder  to  the  Federal  Government,  pointing  out  that  in  the 
last  resort,  short  of  revolution,  the  power  lay  with  three- 
fourths  of  the  States.  In  the  statements  that  "  the  States  as 
sovereign  parties  to  their  compact,  must  ultimately  decide 
whether  it  has  been  violated ;"  and  "that  it  is  evident  that  the 
interposition  of  the  parties,  in  their  sovereign  capacity,  can 
be  called  for  by  occasion  only  deeply  and  essentially  affecting 
the  vital  principles  of  their  political  system,"  every  fair  con 
struction  in  the  light  of  contemporary  history  concludes  that 
the  doctrine  asserted  was  no  more  than  that  the  right  of  revo 
lution  lay  primarily  with  the  State  organizations ;  and  of  course, 
should  these  not  agree,  with  the  people  regardless  of  State 
units.  Our  forefathers  believed  that  the  interests  of  the 
people  of  each  State  were  so  common  that  there  was  little 
danger  of  State  disintegration.  Alexander  Hamilton  under 
stood  American  sentiment,  and  in  the  notes  made  by  him  dur 
ing  the  convention  which  drew  the  Constitution  we  find : 
"State  governments  will  always  have  the  confidence  and  gov 
ernment  of  the  people;  if  they  cannot  be  conciliated  no  efficient 
government  can  be  established."8 

Neither  resolution  proposed  anything  "but  the  necessary 
and  proper  means;"9  and  the  proper  means  by  which  the 
"States  have  the  right,  and  are  in  duty  bound,  to  interpose 
for  arresting  the  progress  of  the  evil,"  as  Madison  showed 
when  defining  the  Virginia  resolution,  was  that  the  States 
should  either  have  Congress,  by  two-thirds  of  both  Houses, 


8  Hamilton's    Notes,    16. 
8  4  Elliot,  528. 


OF    THE    DRED    SCOTT    DECISION  211 

propose  amendments  of  the  Constitution,  or  that  on  the  appli 
cation  of  the  legislatures  of  two-thirds  of  the  States  there 
should  be  a  convention  for  proposing  amendments,  "which, 
in  either  case,"  to  use  the  words  of  the  Constitution,  "shall 
be  valid  for  all  intents  and  purposes,  as  part  of  this  Constitu 
tion,  when  ratified  by  the  legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  may  be  proposed  by  the  Con 
gress."  So  Madison  was  correct  when  he  said :  "These  several 
means  .  .  .  were  all  constitutionally  opened  for  considera 
tion,"10  for  they  were  plainly  left  to  the  States  by  the  fifth 
article  of  the  Constitution  as  we  yet  have  it  in  force  and  as 
it  was  originally  ratified. 

It  is  not  surprising,  therefore,  that  Webster,  when  he 
came  to  denounce  the  seditious  and  dangerous  nullification  of 
Federal  laws  and  acts  should  frankly  have  admitted  the  true 
nature  of  the  Virginia  resolution.  He  said  the  resolution  "is 
susceptible  of  more  than  one  interpretation.  It  may  mean  no 
more  than  that  the  States  may  interfere  by  complaint  and 
remonstrance ;  or  by  proposing  to  the  people  an  alteration  of 
the  Federal  Constitution.  This  would  all  be  quite  unobjec 
tionable;  or,  it  may  be,  that  no  more  is  meant  than  to  assert 
the  general  right  of  revolution,  as  against  all  governments, 
in  the  case  of  intolerable  oppression.  This  no  one  doubts ; 
and  this,  in  my  opinion,  is  all  that  he  who  framed  the  resolu 
tion  could  have  meant  by  it."11 

That  there  was  no  objectionable  State  nullification  pro 
posed  by  the  Virginia  resolutions,  aside  from  an  interpreta 
tion  of  the  wording,  is  also  shown  by  the  attitude  of  the 
people  toward  the  obnoxious  laws.  The  wide  and  general 
enforcement  of  the  sedition  law,  against  persons  for  the  most 
unimportant  declarations,12  served  to  strengthen  the  fear  con 
cerning  the  powers  thus  lodged  in  the  Federal  Government. 
The  people  of  Virginia  were  brought  face  to  face  with  a 


10  4    Elliot,    579. 

11  10   Benton'y   Abridgement   Cong.   Debates,   434. 

12  See  list   in   E.   P.   Powell,  Nullification  and   Secession,  62. 


212  LEGAL  AND  HISTORICAL  STATUS 

most  aggravating  instance  of  this  abuse  of  power  in  one 
of  these  judicial  enforcements.  In  May  and  June,  1800,  a 
Virginia  jury  sustained  by  the  public  sentiment  of  the  entire 
State  enforced  in  Richmond  in  the  trial  of  James  Thomas 
Callender,  the  law  believed  by  them  and  the  public  to  have  been 
unconstitutional  and  seriously  dangerous.  The  case  was  heard 
in  the  Federal  court,  Samuel  Chase,  a  justice  of  the  United 
States  Supreme  Court,  presiding.  Chase  was  an  ardent  Fed 
eralist  and  in  hearty  sympathy  with  the  objectionable  laws  and 
warmly  approved  the  purposes  for  which  they  had  been  en 
acted.  Quick  of  temper,  of  will  unbending,  vindictive  in  dis 
position,  he  resolved  to  enforce  the  detested  law  with 
the  utmost  rigor.  He  succeeded  in  the  most  arbitrary  and 
dictatorial  manner.  Callender,  of  Petersburg,  had  written, 
"The  Prospect  Before  Us,"  a  slanderous  and  infamous  produc 
tion  bitterly  arraigning  President  Adams.  Indicted,  ar 
rested,  and  put  upon  trial,  the  prisoner  was  represented  by 
William  Wirt,  George  Hay,  and  P.  N.  Nicholas,  all  of  whom 
in  their  lifetimes  were  recognized  as  lawyers  of  great  ability. 
Chase's  treatment  of  these  distinguished  attorneys  was  so 
reprehensible  that  it  was  made  one  of  the  counts  in  the  famous 
impeachment  procedure  brought  against  him  before  the  United 
States  Senate  January,  i8c>4.13  The  judge's  conduct  was  the 
very  strongest  illustration  of  the  dangers  feared  by  reason  of 
the  arbitrary  powers  conferred  especially  upon  the  President 
by  the  alien  laws.  The  jury,  although  it  had  seen  the  gross 
abuse  of  power  by  the  presiding  judge,  although  it  believed 
the  law  under  which  it  was  proceeding  was  unconstitutional 
and  dangerous  to  individuals,  to  the  State  and  to  the  country, 
being  sustained  in  this  conviction  by  the  opinion  of  the  entire 
people,  found  Callender  guilty.  No  attempt  was  made  to 
rescue  the  prisoner;  no  voice  arose  to  denounce  the  judiciary. 
Monroe,  writing  to  Madison  June  4,  1800,  of  this  trial  says: 
"The  conduct  of  the  people  on  this  occasion  was  exemplary, 
and  does  them  the  highest  honor.  They  seemed  aware  the 

13  The  Trial  of   Samuel   Chas'e,   (Washington,    1805)    5. 


OF    THE    DRED    SCOTT    DECISION  213 

crisis  demanded  of  them  a  proof  of  their  respect  for  law  and 
order,  and  resolved  to  show  they  were  equal  to  it."14  Then 
very  correctly  he  adds  that  everything  connected  with  the  case 
went  to  provoke  a  different  conduct.15 

In  short,  the  res  gestac  of  the  Virginia  and  the  Kentucky 
resolutions  prove  that  the  people  neither  suggested  nor  con 
templated  the  nullification  of  the  Federal  laws  by  the  action 
of  a  State  or  by  that  of  any  number  of  the  States  in  any  other 
than  the  manner  provided  by  the  Constitution.  Whether  the 
people  were  correct  in  saying  that  the  sovereign  States  were 
parties  to  a  compact,  and  that  the  Constitution  was  the  compact 
between  them  as  parties  on  one  side  and  the  Federal  Govern 
ment  on  the  other,  or  that  the  States  were  the  independent 
sovereigns  contracting  each  with  the  other,  it  is  certain  that 
the  main  point  is  not  altered:  for  in  the  last  resort  three- 
fourths  of  the  States  wield  sovereign  and  supreme  power  over 
the  Federal  Government.  At  any  rate,  no  attempt  at  an  exer 
cise  of  nullification  in  the  dangerous  sense  is  attributed  to  the 
South  or  any  part  of  it  until  1831.  Askley  brings  the  indict 
ment  against  the  State  of  Georgia  in  her  controversy  regarding 
certain  Indiana  lands.16  We  cannot  here  examine  this  in 
different  alleged  instance;  but  it  is  proper  to  direct  attention 
to  the  many  real  and  flagrant  instances  found  in  the  North 
up  to  this  time,  and  which  are  generally  neglected  by  writers. 

Up  to  1832  no  practice  of  nullification  was  indulged  by 
the  South.  It  was  not  advocated  by  any  representative  num 
ber,  and  not  until  seriously  injured  by  Federal  power  by  even 
the  few.  The  first  important  discussion  of  the  doctrine  in 
Congress  is  found  in  the  celebrated  debate  between  Webster 
and  Hayne,  the  latter  of  South  Carolina.  Hayne  is  often  re 
garded  as  an  early  champion  of  that  which  Webster  fought 
so  bitterly:  "The  right  of  a  State  to  annul  a  law7  of  Congress 
or  anv  act  of  the  Federal  Government."  In  the  debate  Web- 


14  4   Writings   of   Madison,   413,   n. 

13  An   interesting  account  of   the  trial  is   in  Howison's   History  of   Virginia,    (Rich 
mond,   1845)   378  et  seq. 

10  R.  L.   Ashley,  The  American  Fed.   State,   (1902)    144. 


214  LEGAL  AND  HISTORICAL  STATUS 

ster  drew  his  own  inferences  from  what  Hayne  said,  and  then 
proceeded  to  batter  what  he  insisted  was  the  conclusion  from 
the  position  which  he  thus  imputed  to  Hayne,  rather  than 
what  Hayne  had  really  argued.  Webster's  speeches  are  pub 
lished  more  widely  than  are  Hayne' s,  and  so  Hayne' s  true 
contention  is  not  always  understood.  Much  of  Webster's 
fight  was  made  against  the  doctrine  that  the  Constitution  is  a 
compact,  made  by  and  between  sovereign  and  independent 
States,  questions  entirely  foreign  to  an  inquiry  concerning  the 
powers  the  States  actually  have  under  the  Constitution  in 
reference  to  or  over  that  instrument  and  the  Federal  Govern 
ment. 

The  debate  took  place  in  the  Senate  in  1830.  It  was 
precipitated  by  Webster,  and  had  the  Foote  resolution  as  its 
immediate  cause  and  not  the  remonstrance  of  South  Carolina 
against  the  tariff.  The  resolution  had  not  even  a  remote 
bearing  upon  nullification.  It  involved  a  mere  temporary  sus 
pension  of  the  sale  of  public  lands.  January  19,  the  resolu 
tion  having  been  called  up,  Hayne  arose  and  recommended 
"some  fixed  and  settled  policy  with  reference  to  the  public 
lands,"  disapproving  the  prior  course  of  the  government  in 
this  respect,  and  deprecated  the  building  of  an  immense  Fed 
eral  fund  from  land  sales.  In  his  remarks  he  said:  "Sir,  I 
am  one  of  those  who  believe  that  the  very  life  of  our  system 
is  in  the  independence  of  the  States,  and  that  there  is  no  evil 
more  to  be  deprecated  than  the  consolidation  of  this  govern 
ment.  It  is  only  by  a  strict  adherence  to  the  limitations  im 
posed  by  the  Constitution  on  the  Federal  Government,  that 
this  system  works  well,  and  can  answer  the  great  ends  for 
which  it  was  instituted."17 

W'ebster  seized  this  reference  to  consolidation,  and  made 
the  remark  an  excuse  to  deliver  to  certain  citizens  of  South 
Carolina  a  rebuke  for  their  attitude  toward  the  Federal  Gov 
ernment  on  account  of  the  tariff  laws  that,  in  very  truth,  were 
impoverishing  the  State  to  enrich  the  North,  and  that  with 


17  10    Benton's   Abridgement,   421. 


OF    THE    DRED    SCOTT    DECISION  215 

no  public  need  for  the  sacrifice.  Webster  insisted  that  dis 
union  and  not  consolidation  was  the  imminent  danger.  Though 
carefully  exonerating  Hayne,  he  incriminated  Hayne's  per 
sonal  friends,  most  of  whom  were  absent,  except  Calhoun, 
then  Vice-President  and  as  the  presiding  officer  of  the  Senate 
who  could  not  speak. 

Hayne  replied,  defending  his  State  and  insisting  that 
his  position  as  to  the  powers  of  the  States  over  the  Federal 
Government  was  that  expressed  by  the  Virginia  resolution. 
Except  in  so  far  as  he  advocated  the  right  of  a  State  to  sus 
pend  the  operation  of  an  objectionable  law  until  three-fourths 
of  the  States  could  take  some  action,  he  did  not  advocate  nul 
lification.  He  plainly  said  that  where  a  State  and  the  Fed 
eral  Government  were  in  conflict  as  to  the  constitutionality 
of  a  Federal  law,  the  mode  of  settling  the  disagreement  was 
found  in  the  very  form  and  structure  of  the  government.  "The 
creating  power  is  three-fourths  of  the  States.  By  their  de 
cision  the  parties  to  the  compact  have  agreed  to  be  bound,  even 
to  the  extent  of  changing  the  entire  form  of  the  government 
itself;  and  it  follows  of  necessity,  in  case  of  a  deliberate  and 
settled  difference  of  opinion  between  the  parties  to  the  compact 
as  to  the  extent  of  the  powers  of  either  resort  must  be  had 
to  their  common  superior — that  power  which  may  give  any 
character  to  the  Constitution  they  may  think  proper — viz : 
three-fourths  of  the  States,"  was  the  plain  language  in  which 
he  defined  his  contention.18 

Entirely  regardless  of  whether  the  States  be  parties  and 
the  Constitution  a  compact,  it  is  certain  that  the  nullification 
which  Hayne  advocated  in  this  debate  with  Webster  was 
quite  different  to  that  practiced  by  the  North  with  reference 
to  various  Federal  laws,  and  widely  unlike  that  especially 
advocated  concerning  the  Dred  Scott  decision. 

In  1832  a  large  part  of  the  people  of  South  Carolina  grew 
desperate.  Congress  had  not  heeded  their  prayers  for  relief, 
and  they  believed  themselves  to  be  seriously  injured  by  the 


18  Ib.   443,  445.      See  4   Elliot,   Debates,   515. 


216  LEGAL  AND  HISTORICAL  STATUS 

sectional  tariff  laws.  They  insisted  that  the  tariff  laws  were 
an  "imposition  laid,  not  by  the  representatives  of  those  who 
paid  the  tax,  but  by  the  representatives  of  those  who  are  to 
receive  the  bounty."  The  legislature,  following  a  bitter  con 
test' over  the  election  of  members,  called  a  convention  of  the 
people  to  meet  in  November,  1832,  authorizing  it  to  take  into 
consideration  the  tariff  laws  and  to  take  such  steps  as  should 
be  decided  to  be  proper.19  The  convention  promptly  convened 
and  after  discussion  passed  an  ordinance  declaring  the  tariff 
laws  "unconstitutional,  and  therefore  absolutely  void,  and  of 
no  binding  force  within  the  limits  of  this  State."  The  legis 
lature  was  requested  to  provide  for  carrying  into  execution 
this  declaration,  and  "all  the  functionaries  and  all  the  citizens 
of  the  State,  on  their  allegiance,"  were  enjoined  to  cooperate. 
The  legislature  at  its  following  session  put  the  State  in  readi 
ness  for  war,  and  made  every  preparation  to  carry  into  full 
force  the  ordinance  if  necessary  at  the  point  of  the  bayonet. 
Calhoun,  having  resigned  the  Vice-Presidency,  had  been  sent 
to  the  United  States  Senate  where  he  could  take  open  issue 
with  those  regarded  as  the  enemies  of  the  State.  Hayne  went 
home  and  was  by  the  nullificationists  elected  governor.  The 
entire  action  of  both  the  convention  and  the  legislature  was 
nullification  and  more;  it  was  in  effect  revolution  by  the  State 
backed  by  threatened  secession.  The  ordinance  of  nullification 
declared  that  should  the  Federal  Government  attempt  to  en 
force  the  laws  regarded  as  injurious  the  people  would  "thence 
forth  hold  themselves  absolved  from  all  further  obligation  to 
maintain  or  preserve  their  political  connection  with  the  people 
of  the  other  States,  and  will  forthwith  proceed  to  organize 
a  separate  government,  and  do  all  other  acts  and  things  which 
sovereign  and  independent  States  may  of  right  do."  Decem 
ber  29,  1832,  the  legislature  having  passed  an  act  for  the  en 
forcement  of  the  will  of  the  convention,  President  Jackson 
indicated  his  determination  to  enforce  the  Federal  law,  but  the 
State  held  stubbornly  to  her  position  until  Clay  came  forward 

19  Southern  Patriot  (Charleston,  S.  C.),  October  26,  1832;  Acts  of  Legislature. 


OF    THE    DRED    SCOTT    DECISION  217 

with  his  compromise  tariff  law  and  thus  averted  armed  con 
flict.  Jackson's  message  to  Congress  refuting  the  doctrine 
is  recognized  as  one  among  the  ablest  of  state  papers.20  The 
law  enacted,  practically  that  proposed  by  Clay,  provided  for  the 
gradual  scaling  down  of  the  high  tariff  duties  until  at  the  end 
of  ten  years  a  free-trade  basis  should  be  reached.  Accepting 
the  compromise  the  State  convention  on  March  16,  1833,  re 
pealed  the  ordinance  of  nullification. 

Entirely  apart  from  the  grounds  upon  which  the  nullifi- 
cationists  of  South  Carolina  acted,  we  are  here  concerned  alone 
with  the  extent  that  the  doctrine  and  the  movement  met  the 
approval  of  the  South.  If  nullification  were  the  doctrine  of 
the  South,  then  there  could  be  no  justice  in  the  complaint  of 
that  section  against  the  nullification  of  the  Dred  Scott  de 
cision.  The  nullification  of  the  Federal  la\vs  by  the  North, 
including  as  many  which  did  not  involve  slavery  as  which  did, 
as  has  been  said,  and  the  fact  that  the  machinery  of  the 
government  was  in  the  hands  of  the  nullifiers  and  those  who 
were  either  in  tacit  or  open  sympathy  with  them,  are  among 
the  concrete  justifications  upon  which  the  secession  of  the 
South  rests.  Therefore  the  truth  of  the  South's  relation  to 
the  nullification  of  South  Carolina,  is  most  vital  to  the  South 
ern  people.  This  is  the  more  true  because  this  act  of  the 
State  of  South  Carolina  is  the  only  actual  and  flagrant  in 
stance  of  nullification  in  the  objectionable  sense  of  the  doc 
trine  to  be  found  in  Southern  history. 

In  the  election  of  the  legislature  which  called  the  nullifi 
cation  convention  in  South  Carolina  there  was  a  stubborn  fight 
against  the  doctrine.  The  vote  stood  about  17,000  anti-nulli- 
fiers  to  about  23,000  nullifiers.21  Even  the  nullificationists 
had  not  rushed  into  an  exercise  of  the  doctrine.  For  years 
they  had  asked  for  relief,  and  had  resorted  to  divers  remedies, 

20  See  the  message  in   2   Richardson's   Message  and   Papers  of  the   Presidents,   610, 
and  the  Proclamation  at  page  640.     As  to  the  action  of  the  State  see  The   (Charleston) 
Mercury,    January    5,    1833;    The   Patriot,    November    24,    1832;    and    State    Papers    on 
Nullification,   for  the   ordinance   in   full. 

21  De  Bow,  Political  Annals  of  South  Carolina,   (1845)  39;   i   Legare,  Writings,  209; 
Houston,    Nullification   in    South   Carolina,    107. 


2l8  LEGAL  AND  HISTORICAL  STATUS 

such  as  discarding  imported  goods  and  actually  wearing  home 
spuns.22  After  the  ordinance  of  nullification  had  been  passed 
and  Jackson  had  signified  his  intention  of  enforcing  the  laws 
of  the  Federal  Government,  the  Union  men  of  the  State  or 
ganized  and  notified  the  President  that  no  outside  assistance 
would  be  needed  to  enforce  the  execution  of  the  laws, — laws 
detested  by  practically  the  entire  State  including  most  of  these 
very  men  thus  willing  to  sustain  them  as  against  the  doctrine 
of  nullification.  In  March,  1833,  about  1,000  Union  men  vol 
unteered  for  military  duty  and  stood  ready  to  act  for  the  Fed 
eral  Government  in  any  emergency.23  Some  of  the  ablest 
papers  of  the  State  both  before  and  after  the  nullification 
action  took  the  most  advanced  ground  in  support  of  the  Fed 
eral  laws  so  long  as  the  State  remained  in  civil  and  political 
connection  with  the  Union.  Conspicuous  among  these  was 
ihe  Southern  Patriot,  published  in  Charleston.24  The  Union 
ists  were  not  the  high  tariff  people ;  the  people  were  agreed  as 
to  the  oppressive  nature  of  the  laws ;  the  opposition  to  the  nul- 
lifiers  rested  purely  upon  a  disavowal  of  the  doctrine  of  nulli 
fication.25  The  Union  people  recognized,  in  common  with 
all  civilized  people,  the  right  of  revolution ;  and,  as  did  the 
South  generally  later,  believed  the  right  to  be  concretely 
expressed  by  secession  and  to  be  exercised  only  in  cases  of  in 
tolerable  oppression.20  The  right  of  political  dismember 
ment  they  recognized;  nullification  they  would  not  tolerate. 
As  a /State  South  Carolina  is  responsible  for  the  nullifi 
cation  of  1832.  She  had  gone  scarcely  further  than  had 
such  Northern  States  as  Massachusetts  and  Connecticut,  the 
governors  of  which  flatly  refused  to  obey  the  Federal  law 
requiring  soldiers  for  the  defence  of  the  country  in 
our  war  with  England  in  1812,  declaring  the  Federal  Gov- 


22  Charleston  Mercury,  July  7,  12,  16,  and  August  4,   1828. 

23  Houston,  Nullification  in  South  Carolina,    115. 

24  See  especially  issues  of  July  19,  25,  and  September   15,  22,   1832. 

25  Ib.    September    15,    1832. 

2(!  See     The    Patriot,    quoting     from    the    Augusta,     Georgia,     Constitutionist,    July 
19,  1832. 


OF    THE    DRED    SCOTT    DECISION  2 19 

eminent  had  violated  the  Constitution.  South  Carolina 
occupied  no  ground  in  advance  of  that  taken  by  the  repre 
sentatives  of  Rhode  Island,  New  Hampshire,  Vermont,  and 
Massachusetts  in  the  Hartford  Convention,  who  issued  an 
ordinance  declaring:  "In  case  of  deliberate,  dangerous,  and 
palpable  infractions  of  the  Constitution,  affecting  the  sover 
eignty  of  a  State  and  the  liberties  of  the  people,  it  is  not  only 
the  right  but  the  duty  of  such  State  to  interpose  its  authority 
for  protection  in  the  manner  best  calculated  to  secure  that 
end.  .  .  .  Therefore,  resolved,  that  it  be  and  is  hereby  recom 
mended  to  the  legislatures  of  the  States  represented  in  this 
convention,  to  adopt  all  such  measures  as  may  be  necessary 
effectually  to  protect  the  citizens  of  the  said  States  from  the 
operation  and  effect  of  all  acts  which  have  been  or  may  be 
passed  by  the  Congress  of  the  United  States;  and  which  shall 
contain  provisions  subjecting  the  militia  or  other  citizens  to 
drafts,  conscriptions,  or  impressments,  not  authorized  by  the 
Constitution  of  the  United  States. '<27To  carry  out  this  ordi 
nance  as  did  the  one  Southern  State  so  the  several  in  North 
made  ready  to  maintain  State  nullification  against  the  Fed 
eral  Government  by  war.  Yet  the  citizens  of  the  State  of 
South  Carolina  were  far  from  a  unit  concerning  the  right 
which  the  nullification  convention  attempted  to  exercise,  and 
it  is  seriously  questionable  whether  the  work  of  the  conven 
tion  reflected  the  true  sentiment  of  a  majority  of  the  people. 
The  saner  sentiment  was  that  expressed  by  a  resolution  of  an 
anti-nullification  convention  at  Columbia :  "It  is  not  a  mere 
infraction  of  the  Constitution  which,  like  an  external  injury, 
leaves  the  general  utility  unimpaired,  but  a  radical  and  fatal 
error.  ...  If  one  State  has  the  jurisdiction  to  declare  a  law  \ 
unconstitutional  every  other  must  have  the  same ;  and  the  Con-  I 
stitution  can  have  no  settled  meaning."28  ^) 

What   of   the   South   generally   or   any   important  part? 


27  American   State   Papers;    Miscl.,   volume   2,    186;    i    Richardson,   Messages   of   the 
Presidents,  516.     For  a  contemporary  list  of   Northern  nullifications  see  Hampden,  The 
Genuine    Book    of    Nullification,    (Charleston,    1831). 

28  See  The  Patriot,  December  12,  13,  20,  and  21,   1832. 


22O  LEGAL  AND  HISTORICAL  STATUS 

Scarcely  a  more  opportune  time  or  a  more  plausable  excuse 
for  asserting  or  abetting  nullification  could  have  been  af 
forded  the  Southern  people.  Those  who  wrote  and  who 
sanctioned  the  Virginia  and  Kentucky  resolutions  were  yet 
living.  No  popular  change  of  sentiment  had  occurred  in  either 
State:  what  now  of  Virginia  and  Kentucky? 

With  direct  reference  to  the  action  of  South  Carolina 
the  legislature  of  Kentucky,  on  February  2,  1833,  declared 
that  "  no  State  of  this  Union  has  any  constitutional  right  or 
power  to  nullify,"  "contravene"  or  "obstruct"  the  laws  or  regu 
lations  of  the  United  States;  and  that  the  Federal  judiciary 
alone  could  "abrogate  or  annul"  the  laws  of  Congress ;  and 
"that  so  long  as  the  present  Constitution  remains  unaltered 
the  legislative  enactments  of  the  constitutional  authorities  of 
the  United  States  can  only  be  repealed  by  the  authorities  that 
made  them."-  In  language  no  less  clear  and  certain  the  legis 
lature  of  Virginia  repudiated  the  doctrine,  and  with  Kentucky 
again  declared  that  in  the  resolutions  of  1798  South  Carolina 
found  neither  encouragement  nor  precedent.  In  the  most  em 
phatic  manner  the  people  of  each  State  made  it  clear  that 
nullification  would  not  be  sanctioned  by  them. 

The  South  generally,  as  a  section,  took  a-  stand  side  by 
side  with  Virginia  and  Kentucky.  Not  a  single  Southern  State 
failed  in  the  most  positive  manner  to  repudiate  nullification  and 
to  condemn  the  action  of  the  South  Carolina  nullifiers.30  The 
legislature  of  North  Carolina  affirmed  "that  the  doctrine  of 
nullification  declared  by  South  Carolina  ...  is  revolutionary 
in  its  character,  will  in  its  operation  be  subversive  of  the  Con 
stitution  of  the  United  States,  and  lead  to  a  dissolution  of 
the  Union."  Said  the  Richmond,  Virginia,  Enquirer:  "Let 
us  hope  for  the  best.  This  Union  must  be  preserved — nulli 
fication  arrested — the  protective  system  extinguished.  .  .  . 
we  trust  that  the  Southern  States  will  continue  to  wage  in 
terminable  war  against  the  odious  tariff,  while  they  dissent 


29  Smith,  Hist.  Ky.,  355. 

30  State  Papers  on  Nullification,   101-292;  Houston,  Nullification  in  S.   C.,   119. 


OF    THE    DRED    SCOTT    DECISION  221 

from   the  dangerous  remedy  of  nullification/'31     Such  were 
the  sentiments  representative  of  the  South. 

When  Powell  says :  "Nullification  was  the  watchword 
of  a  united  South,"  he  draws  a  hasty  and  unwarranted  con 
clusion  from  very  narrow  premises.32  Here  and  there  local 
meetings  encouraged  the  nullifiers,  but  such  sympathy  was 
expressed  by  a  decided  minority.33  Small  gatherings,  repre 
sentative  of  the  others  of  their  kind,  in  Louisiana  and  Georgia 
urged  the  nullifiers  to  perpetuate  the  determination  of  their 
ancestors  to  be  "tenants  of  the  soil  or  of  the  sod,"  rather  than 
surrender,  and  declared  that  "the  children  of  Marion,  Pick- 
ney,  and  Hayne  will  not  stop  to  calculate  the  cost  after  they 
have  planted  themselves  upon  the  Constitution."34  In  fact, 
the  nullifiers  received  far  more  encouragement  from  the  North 
than  from  the  South. ::r>  Even  Thorpe  admits:  "The  extreme 
nullifiers  were  a  minority  in  the  Democratic  party  at  the 
South."30  Not  only  were  the  nullifiers  a  minority, — as  com 
pared  with  the  entire  section  an  insignificant  minority;  but 
nullification  was  at  no  time  the  doctrine  of  the  South.  Seces 
sion  was  not  nullification;  secession  was  not  the  climax  of 
the  nullification  doctrine.  The  two  are  as  unlike  as  self-de 
fense  is  unlike  murder. 

The  contrast  is  not  difficult  to  see.      The  two   sections 
of  the  Union  differed  upon  questions  most  vital  to  the  Ameri 
can  government.     As  the  period  of  the  war  between  the  States    \ 
drew   rapidly   on,    nullification   became   the   watchword   of   a     i 
united  North.     It  became  evident  that  coercion  impended  the 
one  side  or  the  other.     Buchanan  said  in  his  inaugural  address 
that  the  question  of  the  power  of  Congress  over  slave  property 
in  a  Territory  "is  a  judicial  question  which  legitimately  be 
longs  to  the  Supreme  Court  of  the  United  States,  before  whom 


31  See  also   The   Patriot,   Dec.    13. 

32  Nullification   and    Secession,   267. 
'M  The   ~Mecury,  Jan.    n,   1833. 

34  Ib.  January  4. 

33  The  Mecury,  January  9,   1833. 

36  Const.   Hist.   U.    S.,  vol.    2,  405,   n.    2. 


222  LEGAL  AND  HISTORICAL  STATUS 

it  is  now  pending,  and  will,  it  is  understood,  be  speedily  and 
finally  settled.  To  their  decision,  in  common  with  all  good 
citizens,  I  shall  cheerfully  submit,  whatever  this  may  be."37 
Some  say  this  indicated  that  "the  slave  power,''  as  Alex.  H. 
Stephens,  Reverdy  Johnson  and  other  leaders  of  the  South 
are  unjustly  called  by  some  writers,  had  improperly  impor 
tuned  the  Supreme  Court  to  decide  the  constitutionality  of  the 
Missouri  Compromise;  and  that  this  "power''  had  adroitly 
and  illegally  influenced  the  court  by  means  "well  calculated  to 
disturb  their  judgment."  But  as  against  such  statements  the 
facts  are  that  there  is  no  more  ground  for  them  than  that 
similar  influences  were  brought  to  bear  upon  the  court  by  the 
Republicans,  or  the  anti-Southern  people,  or  the  anti-negro 
party. 

Judge  McLean  on  November  2,  1855,  wrote  to  a  political 
friend,  in  reference  to  the  Dred  Scott  Case:  "The  Supreme 
Court  has  decided  that  slavery  exists  by  virtue  of  the  munici 
pal  law,  and  is  local.  The  Constitution  gives  Congress  no 
power  to  institute  slavery;  therefore  there  can  be  no  slavery 
in  the  Territories ;  for  there  is  no  power  but  Congress  which 
can  legislate  for  the  Territories.  ...  I  write  to  you  in  con 
fidence.  .  .  .  It  is  better  that  my  opinions  should  find  their 
way  to  the  public  from  the  bench."38  Thus  we  have  the  writ 
ten  evidence  that  at  least  one  of  the  members  of  the  court 
gave  the  Republican  party  an  intimation  of  what  might  be  ex 
pected  and  an  absolute  assurance  of  what  his  opinion  would  be. 
Too,  this  was  while  the  case  was  pending. 

In  his  speech  at  Galena,  Illinois,  August  i,  1856,  just  short 
ly  before  the  Dred  Scott  Case  was  argued  the  last  time,  speak 
ing  directly  of  the  constitutionality  of  the  Missouri  Compro 
mise,  Lincoln  said :  "I  grant  you  that  an  unconstitutional  act 
is  not  law;  but  I  do  not  ask  you  and  will  not  take  your  con 
struction  of  the  Constitution.  The  Supreme  Court  of  the 
United  States  is  the  tribunal  to  decide  such  a  question,  and 


S   Richardson,   Mes.   and   Papers   of  the   Pres.,   431. 
Bibliotheca    Sacra,    Oct.,    1899,    339. 


OF  THE  DRED  SCOTT  DECISION  223 

we  will  submit  to  its  decisions;  and  if  you  do  also,  there  will 
be  an  end  of  the  matter.  Will  you?  If  not,  who  are  the  dis- 
unionists — you  or  we?"39  Lincoln  said  no  less  than  Buch 
anan.  We  know  the  Republicans  had  the  assurance  of  Judge 
McLean,  and  if  such  is  of  the  weight  ascribed  to  much  less 
evidence  regarding  the.  Southern  influence,  certainly  the  anti- 
Southern  people  had  adroitly  attempted  to  influence  the  judges 
"by  persuasion  well  calculated  to  disturb  their  judgment." 
Having  failed,  the  court  having  declared  their  construction 
of  the  Constitution  wrong,  having  refused  to  submit,  by  Lin 
coln's  measure  who  were  the  disunionistsf 

In  truth,  up  to  the  very  moment  of  defeat  the  ranks 
and  the  leaders  of  the  anti-Southern  party  were  ardent  in 
swearing  loyalty  to  whatsoever  decision  of  the  Dred  Scott 
Case  the  Supreme  Court  might  reach.  For  years  the  laws 
of  Congress  boastfully  had  been  nullified  to  the  serious  hurt 
of  the  South  by  a  rebellious  North.  The  machinery  of  the 
Federal  Government,  that  part  specially  charged  with  the 
execution  of  these  laws  and  the  enforcement  of  the  Constitu 
tion,  fell  into  the  hands  of  the  Northern  party.  Congress,  as 
late  as  January,  1861,  admitted  the  prevalent  nullification, 
but  proposed  no  substantial  remedy.40  (Having  lost  the  de 
cision  which  they  themselves  sought  from  the  court,  the  situa 
tion  in  connection  with  the  blind  storm  of  repudiation,  nullifi 
cation  and  denunciation  which  sprang  with  a  murderous  roar 
from  the  erstwhile  submissionists  clearly  demonstrated  the 
fixed  determination  of  the  North  to  coerce  the  South  and  to 
continue  the  subversion  of  the  Federal  Government.  ' 


39  Bell,  Letters  and  Addresses,  of  Lincoln,  93. 

40  Ho.   Committee  Rept.   No.   31,  p.   9:36  Cong.,   2nd  sess. 


INDEX 


Abatement — • 

plea  of,  32,  42,  50,  93,  95. 
Africans — 

not   political   persons,   38. 
American  government — • 

definition  of,  n  ; 

how  preserved,  9,  10 ; 

nullification    in,    206. 
Anti-negro  laws — 

in  New  York,  59 ; 

in  Massachusetts,  59 ; 

in  New  Jersey,  60 ; 

in  Indiana,  62; 

in  Illinois,  63 ; 

in  Ohio,  63 ; 

in  Oregon,  66; 

in  Kansas,  66; 

in  Connecticut,  67. 
Ashley,    R.    L.— 

charges,    nullification,    213. 

Benton,  Thos.  H. — 

on   the   Constitution,    117. 
Blair,  Scott's  attorney — 

urges      decision      of      Missouri 

Compromise,   107,   109. 
Brewer,  Judge — 

on   court   and    Constitution,    13. 
Brice,  James — 

on    importance    of    Dred    Scott 

Case,  5 ;  on  function  of  Supreme 

Court,  13. 
Brown,  Judge — 

on  nature  of  slave  property,  167. 
Burgess,  John  W. — 

view  as  to  interpreting  the  Con 
stitution,    137. 
Buchanan,  President — 

pledges     loyalty     to     the     Dred 

Scott  decision,  221. 


Congress — 

amenability   of  to   Constitution, 

119. 
Chaffee,  C.  C— 

manumits  Dred,  29. 
Calhoun,  John  C. — 

relation  of  Constitution  to  Ter 
ritory,    120; 

nullification   ascribed   to,   206. 
California — 

slavery  in  Territory  of,   173. 
Carson,  H.  L. — 

denounces  Dred  Scott  decision, 

7- 
Children — 

when  born   slaves,   no. 
Coercion— 

by  North  against  South,  223. 
Constitution — • 

unchangeable    nature    of,    12; 

how  changed,  13 ; 

and  Supreme  Court,   13,   194 ; 

finality     of     court's     interpreta 
tion,   14; 

and  slavery,  20; 

method  of  interpreting,  168,  53, 

70,  137; 

Webster  on,  120. 

Citizenship — • 

as  basis  of  jurisdiction,  33,  55; 
negro    in    North    Carolina,    6r ; 
negro  in  Ohio,  64 ; 
negro   in    California,   66; 
negro  in  Connecticut,  67 ; 
negro  in  Pennsylvania,  68; 
negro,  Denny  of  Pa.  on,  72 ; 
nature  of,  70; 
defined  by  Virginia,  71  ; 
before  the  I4th  amendment,  51. 


225 


226 


LEGAL  AND  HISTORICAL  STATUS 


Curtis,  Judge — 

error    as    to    negro    citizenship, 

54; 

•     on  power  of   Congress  in  Ter 
ritories,  18; 
on   due  process,   155. 
on  power  of  President,   197. 

Decision — 

judicial,  what,   15,   35. 

Denny,    Jno.    F. — 

on   negro   citizenship,    72. 

Disunionists,  who  \vere,  223. 

Dred's  child- 
born  in  Territory,    107 ; 
right  of  future  suit  by,  108; 
possible   free   birth   of,    no. 

Dred  Scott— 

a    slave  by    Illinois   law,   75. 

Dred    Scott   Case- 
instituted  by  the  North,  23,  27; 
in    the    State    court,    24; 
verdict    in    State   court,   25; 
facts  in,  28,  30; 

judgment  of  Supreme  Court  in, 
40. 

Due  process  of  law — 

constitutional   provision  of  vio 
lated  by  the  Missouri  Compro 
mise,  159; 
definition  of,  158; 
relation  of  to  the  State,  156; 
Curtis  on,    155. 

Elson,  H.  W.— 

denounces  Dred  Scott  decision, 
'      7- 
Emerson,  Dr.  John — 

nativity,    service   and   death   of, 

24. 
Error,   historic — • 

concerning     Dred     Scott     Case, 

why,    115. 

Federal  courts — 

jurisdiction  of,  27. 


Federalist,  the — 

quoted,  9. 
Federal   Government — 

how  established,  9; 

Curtis,  Judge,  on,  54; 

powers  in   Territories,   132. 
Florida,  case  from— 
decision  of  and  light  on  obiter, 

103. 
Fourteenth  amendment — • 

due  process   clause  of,  157. 

Gray,  Judge,  error  of,  106. 
Government  of  the  United  States, — 
nature    of,    10. 

Hamilton,   Alex. — 

declares  slaves  property,  162; 

on  unity  of  State,  210. 
Hart,  A.  B. — denounces  decision,  7. 
History  of  Dred  Scott  Case,  18. 
Henry,   Patrick — • 

on  slavery,  161,  163. 
Hayne,  of  South  Carolina — 

on  nullification,  214; 

debate  with  Webster,  214. 

Indenture   law,   79,    150,    154; 

ratified    by    Congress,    151. 
Illinois   law — 

not  examined  by  court,  why,  78 ; 

slavery   under,  84,  90 ; 

anti-negro  laws   in,  Si. 

Johnston,  Alex. — 

on  Dred   Scott  decision,   6. 
Jurisdiction — 

kinds  of,  93; 

of  Federal  courts,  see  courts. 

Labor  systems  in  U.  S.,  19. 

Law  of  the  land,   def.  of  by  Web 
ster,   157. 

Lincoln,  A. — 

on  Dred  Scott  decision,  222; 
on  a  divided  court,  16. 


OF    THE    DRED    SCOTT    DECISION 


227 


Madison,  James — 

on    Constitution,  9; 

on  Virginia  resolution,  210. 
Monroe,  Jas. — • 

to  Madison  on  conduct  at  Cal- 

lender  trial,  212. 
McLean,  Judge — 

on    presumption    as  to    slavery, 

5o; 

error    concerning    presumption, 

56; 

politics  of,  76; 

on   power   of   Congress,-  76; 

suggests   possible   decision   of 

Dred    Scott    Case,   222,    76. 
Merits,  questions  of,  98,   104. 
Miller,  Judge — 

on  importance  Dred.  Scott  Case, 

6. 
Missouri — • 

fight  over  admission  of,  20; 

laws   of  as  to  children  born  of 

slaves   in    free    State,    in. 
Missouri  Compromise — 

constitutionality    of,    28; 

repeal    of,    28;    decision    as    to 

constitutionality  of,  114;  in 
volved  in  State  action,  no,  112; 

who  decided,  106. 

Negro,   see  anti-negro   laws — 

civil   status   of  in   America,   70; 
the    North    and    the    negro,    19; 
citizenship   of,   51,  53; 
Curtis    on,    54. 

Nelson,   Judge — 
opinion  of,  41. 

North,   anti-free  negro,  23. 

Nullification — 

Northern,  189,  205 ;  in  Ohio, 
190;  in  Vermont,  194;  in  Maine, 
196;  in  New  York,  196;  in  Mas 
sachusetts,  203,  205,  207;  by  the 
Republican  party,  205 ;  in  South 
Carolina,  217;  position  of  North 
and  South  as  to  in  South  Caro 


lina,  220,  222 ;  in  Virginia  and 
Kentucky  resolutions,  207;  defi 
nition  of,  206;  advocated  in 
North,  203. 

Obiter  dictum — • 

nature  of,  91;   def.   of,   TOO; 

application  to  opinion  in    Scott 

Case,  95,  91. 
Opinion  of  court,  what,   16 ; 

where  court  is  divided,   17. 
Ordinance  of  1787 — • 

legal  force  in  Illinois,  88; 

Curtis  on  force  of,  141; 

force  of  after  the  Constitution, 

142; 

defunct     after     States     formed, 

144; 

in  Territories,  143,   147. 

Polk,    President— 

on  territory  derived  from  Mexi 
co,  20. 

Powell- 
error   as   to  nullification   in  the 
South,  221. 

Plea    in    abatement — 
see  abatement. 

Presumption — 
nature   of,   56; 
of  slavery,  55  ; 
against   Scott,   77; 
when  admitted  by  courts,  76. 

Randolph,  of  Virginia — 

on  slave  property,  161. 
Record  followed  by  court,  197, 
Rhodes,  Jas.  K— 

on  Dred  Scott  Case,  5,  7. 
Republican  part — • 

defeated    by    decision    of    Dred 

Scott   Case,  78 ;   see   Anti-negro 

and  Nullification. 

Secession,  grounds  of,  206. 


221 


LEGAL  AND  HISTORICAL  STATUS 


Slaves,    rights    to    sue,    115. 

children    of,    when    born    free, 

III. 
Slave  property — 

in  Old  Northwest,  148,  152. 

outside    of    a    State,    173,    176, 

195; 

among  Indians,  170;  rules  of 
litigation  concerning,  180;  na 
ture  of,  185 ;  under  the  Consti 
tution,  164 ;  in  Cuba,  163 ; 
Southern  owners  and,  140,  161. 

States,  relation  of  to  Federal  Gov 
ernment,   10. 

Supreme    Court,   powers   of,    138; 
followed  record  in  Scott  Case, 
197. 

Stephens,    Alex.    H  — 

on  importance  of  Dred  Scott 
Case,  6. 

Taney,  Chief  Justice — 

inherits  slaves  and  their  treat 
ment  by,  15; 

opinion  by  judicial,  cumulative 
proof  of,  46,  48,  53; 


interpretation    of    the   Constitu 
tion  by,    195. 
Tariff  laws- 
South   Carolina's  objections   to, 

215- 

Territorial  expansion,  effect  of,  19. 

Territory — • 

effect  on  slaves  in,  134; 
Constitution    in,    see    Constitu 
tion. 

Virginia — 

resolution    of    1798,    209; 
see    citizenship. 

Von  Hoist- 
on  -importance    of    Dred    Scott 
Case,   5- 

Webster,  Daniel— 

on  Virginia  and  Kentucky  res 
olutions,  2ii ; 
debate  with   Hayne,  214; 
on    Constitution   in   Territories, 
22; 
on  due  process,  157. 

Wilmot  Proviso,  21. 


RETURN    CIRCULATION  DEPARTMENT 


202  Main  Librar 


ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

Renewals  ond  Recharges  may  be  made  4  days  prior  to  the  due 

Books  may  be  Renewed  by  calling        642-3405 

DUE" AS  STAjyiPEDJELQW 


Pi. 


J96 


EY 


FORM  NO.  DD6 


UNIVERSITY  OF  CALIFORNIA,  BERKELEY 
BERKELEY,  CA  94720 


®s 


^BERKELEY  LIBRARIES 


003^571,130 


